3.5.7 Assignment or Transfer. Contractor shall not assign, hypothecate, or transfer, either directly or by operation of law, this Agreement, or any interest herein without the prior written consent of the City. Any attempt to do so shall be null and void, and any assignees, hypothecates or transferees shall acquire no right or interest by reason of such attempted assignment, hypothecation, or transfer.
3.5.8 Construction: References: Captions. Since the Parties or their agents have participated fully in the preparation of this Agreement, the language of this Agreement shall be construed simply, according to its fair meaning, and not strictly for or against any Party. Any term referencing time, days or period for performance shall be deemed calendar days and not workdays. All references to Contractor include all personnel, employees, agents, and subcontractors of Contractor, except as otherwise specified in this Agreement. All references to City include its officials, officers, employees, agents, and volunteers except as otherwise specified in this Agreement. The captions of the various articles and paragraphs are for convenience and ease of reference only, and do not define, limit, augment, or describe the scope, content, or intent of this Agreement.
3.5.9 Amendment; Modification. No supplement, modification or amendment of this Agreement shall be binding unless executed in writing and signed by both Parties.
3.5.10 Waiver. No waiver of any default shall constitute a waiver of any other default or breach, whether of the same or other covenant or condition. No waiver, benefit, privilege, or service voluntarily given or performed by a Party shall give the other Party any contractual rights by custom, estoppel or otherwise.
3.5.11 No Third-Party Beneficiaries. Except to the extent expressly provided for in Section 3.5.7, there are no intended third-party beneficiaries of any right or obligation assumed by the Parties.
3.5.12 Invalidity- Severability. If any portion of this Agreement is declared invalid, illegal, or otherwise unenforceable by a court of competent jurisdiction, the remaining provisions shall continue in full force and effect.
3.5.13 Prohibited Interests. Contractor maintains and warrants that it has not employed nor retained any company or person, other than a bona fide employee working solely for Contractor, to solicit or secure this Agreement. Further, Contractor warrants that it has not paid, nor has it agreed to pay any company or person, other than a bona fide employee working solely for Contractor, any fee, commission, percentage, brokerage fee, gift, or other consideration contingent upon or resulting from the award or making of this Agreement. Contractor further agrees to file, or shall cause its employees or subcontractors to file, a Statement of Economic Interest with the City's Filing Officer as required under state law in the performance of the Services. For breach or violation of this warranty, City shall have the right to rescind this Agreement without liability. For the term of this Agreement, no member, officer, or employee of City, during the term of his or her service with City, shall have any direct interest in this Agreement, or obtain any present or anticipated material benefit arising therefrom.
3.5.14 Cooperation: Further Acts. The Parties shall fully cooperate with one another and shall take any additional acts or sign any additional documents as may be necessary, appropriate, or convenient to attain the purposes of this Agreement.
3.5.15 Authority to Enter Agreement. Contractor has all requisite power and authority to conduct its business and to execute, deliver, and perform the Agreement. Each Party warrants that the individuals who have signed this Agreement have the legal power, right, and authority to make this Agreement and bind each respective Party. - 15-
3.5.16 Counterparts. This Agreement may be signed in counterparts, each of which shall constitute an original.
3.5.17 Entire Agreement. This Agreement contains the entire Agreement of the parties with respect to the subject matter hereof, and supersedes all prior negotiations, understandings, or agreements. This Agreement may only be modified by a writing signed by both parties.
[SIGNATURES ON FOLLOWING PAGE]
- 16-
SIGNATURE PAGE FOR
PARK RESTROOM MAINTENANCE SERVICES AGREEMENT
BETWEEN THE CITY OF UPLAND
AND GUARANTEED JANITORIAL SERVICE, INC.
IN WITNESS WHEREOF, the Parties hereto have executed this Agreement as of the date first written above.
CITY OF UPLAND GUARANTEED JANITORIAL SERVICE, INC.
APPR• • E BY:
By: (42
illiM/
MI M HA.r: AY Its:
Ci - _.-_ President
Printed Name: , Itr e&.S ()GA®ce- Tg -
ATTESTED BY: Elias Ochoa Jr.
...001r S
B .
KERI JOHN:O►
City Clerk Its: I
C.E.O.
APPROVED AS TO FORM: Printed Name:
Mary Ochoa
Best Best & Krieger LLP
City Attorney
N/A
Contractor's License Number
JS- LR- 1001074029
DIR Registration Number
- 17-
EXHIBIT A
SCOPE OF SERVICES
Restroom Cleaning
• Clean restrooms daily at closing, 365 days per year.
• Closing times will start at 9:00pm
• Contractor will close / lock restrooms after cleaning service. • Restroom cleaning includes but is not limited to removing all litter and debris, sweeping, and washing floors utilizing garden hose & water, scrubbing toilets, sinks and urinal with disinfecting cleaner, and refilling toilet paper as needed. • Stock supplies (Toilet paper only-Contractor to provide) • Wipe down with sanitizer solution, faucets, sinks, hand dryers, changing stations. • Remove/easily removable smudges and/or writing on walls & partitions. • Removal of debris, cobwebs, tape, and staples.
• Report any and all issues and/or maintenance items to Upland Public Works.
Service Locations
Park Restroom Facilities are located at the following locations:
• Citrus Park
• Olivedale Park
• Bike Trail Restroom
• Memorial Park - Rotary Field
• Memorial Park - Skatepark
• Baldy View Park
• Cabrillo Park
• Greenbelt Park
• Magnolia Park
• Sierra Vista Park
• McCarthy Park
• San Antonio Park
EXHIBIT A
EXHIBIT B
COMPENSATION
Public Park Restroom Facilities Cleaning Proposal Soule (Monday-Thursday) Restrooms Day Cost
Location
Monday—Thursday(4) Closing Full Clean
1 Citrus Park—8th St.&Sherman Way Monday-Thursday $ 17.62 2 Olivedale Park—8th Street East of Sultana Ave. Monday-Thursday $ 17.62 3 Bike Trail Restroom—2nd Ave. South of D St. Monday-Thursday $17.62 4 Memorial Park-Rotary Field Monday-Thursday $ 17.62 5 MemorialPark—Skatepark Monday-Thursday $ 1762 6 Baldy View Park—11th Street East of Mountain Monday-Thursday $ 17.62 7 Cabrillo Park—11th Street East of Benson Ave. Monday-Thursday $ 17.62 8 Greenbelt Park—15th Street East of Benson Av. Monday-Thursday $ 17.62 9 Magnolia Park—15th Street East of San Antonio Monday-Thursday $17.62 10 Sierra Vista Park—15th Street&2'd Ave. Monday-Thursday $ 17.62 11 McCarthy Park—San Antonio& 20th Street Monday-Thursday $ 17.62 12 San Antonio Park—Mountain &24th Street Monday-Thursday $ 17.62 * Daily Total $211.44
Pubes Park Restroom Facilities Cleaning Proposal Schedule (Friday-Sunday) Restrooms Daily,Cost
Location
Friday—Sunday(3) Closing/Full Clean
1 Citrus Park—8th St.&Sherman Way Friday-Sunday $24.91 2 Olivedale Park—8th Street East of Sultana Ave. Friday-Sunday $24,91 3 Bike Trail Restroom—2"d Ave. South of D St. Friday-Sunday $24.91 4 Memorial Park—RotaryField Friday
-Sunday ' $ 24.91
5 Memorial Park—Skatepark Friday-Sunday $ 24.91 6 Baldy View Park—11th Street East of Mountain Friday-Sunday $ 24.91 7 Cabrillo Park—11th Street East of Benson Ave. Friday-Sunday $24.91 8 Greenbelt Park—15th Street East of Benson Av. Friday-Sunday $24.91 9 Magnolia Park—15th Street East of San Antonio Friday-Sunday $24.91 r 10 Sierra Vista Park—15th Street &2"d Ave. Friday-Sunday $24.91 11 McCarthy Park—San Antonio&20th Street Friday-Sunday $24.91 12 San Antonio Park—Mountain &24th Street Friday-Sunday $ 24.91 * Daily Total $ 298.92
Exhibit B
4 or UN
`tCALIFORNIA LEVINE ACT DISCLOSURE STATEMENT
Ogt�� 4Q"
California Government Code Section 84308, commonly referred to as the "Levine Act," prohibits City Officers from participating in any action concerning a license, permit,other entitlement for use,franchise, or contract(collectively"license, permit,or contract")if they receive political contribution(s)from a party, or its agent(s), totaling more than $500 within the twelve (12) months before the proceeding, while a proceeding is pending, and for twelve (12) months following the date of a final decision in a proceeding.
The Levine Act also requires a member of the Upland City Council who has received such a contribution to disclose the contribution on the record of the proceeding and recuse themselves before the proceeding unless the violation has been properly cured.
Current Upland City Council Members are listed at:
https://www.uplandca.gov/city-council-treasurer
Parties and their Agents are responsible for accessing the link to review the names and disclosing their applicable contributions to City Officers on the record of a proceeding.
As a party to a proceeding,you are also required to provide information below about contributions made by you, your agents on behalf of you or your organization,your organization subject to the proceeding with the City, and any organization you direct or control pursuant to the aggregation rules at FPPC Reg. § 18438.5, except for uncompensated officers of a nonprofit organization. This form is to be submitted to the City of Upland and is a public record. If you have any questions about this form, please contact your City representative for assistance.
1. Have you or your company,or any agent/board member on behalf of you or your company/entity, made any political contributions of more than $500 to any Upland City Council Member in the 12 months preceding the date of the submission of your proposal or application, or the anticipated date of any Council action?
YES If yes, please identify the Council Member(s):
x NO
2. Do you or your company/entity, or any agency on behalf of you or your company/entity, anticipate or plan to make any political contribution of more than $500 to any Upland City Council Member in the 12 months following any Council action related to your proposal or application? YES If yes, please identify the Council Member(s):
x NO
Answering yes to either of the two questions above does not preclude the Upland City Council from awarding a contract or approving an application or any subsequent action. It does, however, preclude the identified Council Member(s)from participating in any actions related to your proposal or application. _5/28/2026 eiAaAgDate Signiajl-ni:"P re of authorized individual
Guaranteed Janitorial Service, Inc.
Company/Applicant Name
(Levine Act definitions on reverse side)
LEVINE ACT DISCLOSURE STATEMENT DEFINITIONS
Term Definition Law
A proceeding to grant, deny, revoke, restrict, or modify a license, permit or other entitlement for use, that
does not solely involve purely ministerial decisions
and is:
Covered (1)Applied for by the party; FPPC Reg 18438.2(a) "proceedings" (2) Formally or informally requested by the party; or (3)A contract between the agency and the party or a
franchisee granted by the agency to the party, other
than a contract that is competitively bid, a labor
contract, or a personal employment contract.
Any person who files an application for, or is the
Party subject of, a proceeding involving a license, permit, or Gov. Code 84308(a)(1) other entitlement for use.
Any person who is not a party but who actively
supports or opposes a particular decision in a
proceeding involving a license, permit, or other
entitlement for use and who has a financial interest in Gov. Code 84308(a)(2) Participant the decision.A person actively supports or opposes a FPPC Reg 18438.4 particular decision in a proceeding if that person
lobbies in person the officers or employees of the
agency, testifies in person before the agency, or
otherwise acts to influence officers of the agency.
A person who represents a party or participant for
compensation and appears before or otherwise
Agent communicates with the governmental agency for the FPPC Reg 18438.3 purpose of influencing the pending proceeding. See
FPPC Reg 18438.3 for exceptions for certain
consultants.
A contract required by law to be awarded to the lowest
responsible bidder with a responsive bid, or, if the FPPC Reg Competitively Bid successful bidder refuses or fails to execute the 18438.2(a)(3)(A) contract, to the next lowest bidder with a responsive
bid.
A contract or agreement reached through collective
bargaining or with a representative group regarding
Labor Contract the salary, benefits, or terms and conditions under an FPPC Reg employment or retirement policy for employees or 18438.2(a)(3)(B) retirees, including a project labor agreement entered
under Public Contract Code Section 2500.
Personal A contract for employment, including the terms and Employment conditions of employment, between the agency and FPPC Reg Contract an agency employee.A contract with an independent 18438.2(a)(3)(C)-(D) contractor is NOT a personal employment contract.
4<�°F °p`q� CITFUP LAND
o "The City of Gracious Living"
- -
DATE: June 22,2026
TO: MAYOR AND CITY COUNCIL
FROM: MICHAEL BLAY,CITY MANAGER
PREPARED BY:DAMIEN R.ARRULA,ASSISTANT CITY MANAGER
RICHARD GONZALES,DEPUTY PUBLIC WORKS DIRECTOR—UTILITIES ROSA GUTIERREZ,ENGINEERING MANAGER—UTILITIES
LIZ RODRIGUEZ,MANAGEMENT ANALYST
SUBJECT: EMERGENCY REPAIR WORK FOR 26 W. 15TH STREET TRANSFER STATION UPDATE RECOMMENDED ACTION:
It is recommended that the City Council receive and file the status update related to the KSM Electric,Inc. contract for emergency repair work at the 26 W. 15th Street Transfer Station.
GOAL STATEMENT
The proposed action supports the City's goal of maintaining critical public works and utilities support facilities in good operable conditions in order to provide safe and reliable water service to the community.
BACKGROUND
On February 9,2026,the City Council adopted Resolution No. 6866 declaring an emergency condition and approved the emergency repair work at the 26 W. 15th Street Transfer Station.This included approval to execute a contract with KSM Electric,Inc. The emergency action was necessary to address facility conditions requiring immediate repair to maintain safe and reliable operations. Per the City's Purchasing Policy, emergency purchases require a recurring update during City Council agendas until such time as the work is completed.
The work generally includes electrical system repairs, replacement of damaged or failing electrical components, troubleshooting and restoration of power and control systems,and associated work necessary to restore the facility to safe and operational condition.Following Council authorization,staff completed contract execution and advanced the project into implementation, including conducting a pre-construction meeting with KSM Electric, Inc. and its subcontractors and issuing the Notice to Proceed effective April 2,2026.
ISSUES AND ANALYSIS
KSM's permit submittals remain under review at this time, and KSM has remained in communication with the respective permitting authorities. In addition, City staff are reviewing the contractor's materials submittal. Staff met with finance to discuss the project's first change order, which updates the scope to include traffic control measures that were not originally included but are required for permit approval. The change order will be brought forward for Council consideration at the next scheduled Council meeting.
ENVIRONMENTAL DETERMINATION
This action is not a project subject to CEQA and is exempt under Section 15378(b)(5)of the CEQA Guidelines as an organizational or administrative activity of government that will not result in direct or indirect physical changes in the environment.
FISCAL IMPACTS
There is no fiscal impact associated with this action.
ALTERNATIVES
Provide alternative direction to staff.
CEQA:Not a Project.
���4°F °p`qt CI TFUPLAND
.�, 1` "The City of Gracious Living"
ltiriiVO
''' 5 oid.
DATE: June 22,2026
TO: MAYOR AND CITY COUNCIL
FROM: MICHAEL BLAY,CITY MANAGER
PREPARED BY:DAMIEN R.ARRULA,ASSISTANT CITY MANAGER
JESSICA GORDON,DEPUTY PULIC WORKS DIRECTOR-OPERATIONS
RICHARD SMIDERLE,OPERATIONS MANAGER
SUBJECT: CONSIDER APPROVAL OF A GENERAL SERVICES AGREEMENT WITH GRAFFITI PROTECTIVE COATINGS,INC.,FOR GRAFFITI REMOVAL SERVICES.
RECOMMENDED ACTION:
It is recommended that the City Council approve a General Services Agreement with Graffiti Protective Coatings,Inc. for Graffiti Removal Services for an initial term of three(3)years in the amount of$89,760 annually with the option to extend for four(4) additional one-year terms at the sole direction of the City; and authorize the City Manager to execute the Agreement.
GOAL STATEMENT
The proposed action supports the City's objective to provide excellent customer service to the community and continue to maintain and remove all graffiti from City public infrastructure.
BACKGROUND
The City's current Graffiti Removal Service Agreement has expired and is operating on a month-to-month basis. On February 5, 2026 City staff published Request for Proposals (RFP) No. 26-007. This included local newspaper advertisements,a City website advertisement and notifications to graffiti abatement service vendors.Graffiti removal services to be provided will include removing graffiti within 48 hours of notification, matching paint to the surrounding surface area,and submitting before and after photos of all work done.
ISSUES AND ANALYSIS
On March 13,2026,City staff received five(5)bid proposals from the following companies:
BIDDER(s) ANNUAL BID AMOUNT
Graffiti Protective Coatings,Inc. $89,760.00
Urban Graffiti Enterprises,Inc. $93,600.00
Socal Concrete Cleaners,LLC. $175,680.00
D&B Property Maintenance,LLC. $203,179.20
Sureteck Industrial&Commercial Services,Inc. $228,900.00 City staff has reviewed the bid information and confirmed that Graffiti Protective Coatings, Inc., is the lowest responsive bidder. The bid amount is $89,760.00 for the first year Contract for complete Graffiti Removal Services.
The Agreement term is three(3)initial years and reserves the right to extend the term for four(4)additional one-year options. The total annual compensation shall vary, subject to City Council approval of the annual budget for Graffiti Removal Services.
ENVIRONMENTAL DETERMINATION
The proposed action is not subject to the California Environmental Quality Act(CEQA). Section 15378 of the CEQA Guidelines defines a project subject to CEQA. The proposed action is not included within the definition of a"project" and thus is exempt.
FISCAL IMPACTS
The total annual cost for graffiti removal services is$89,760. There are available funds in the adopted biennial Fiscal Year 2026-27—2027-28 budget in Public Works Graffiti Abatement, Contract Services Account No. 1015415-5253 ($89,000)and Public Works Parkway Maintenance,Other Services Account No. 1015410-5258($760).
ALTERNATIVES
1.Reject all RFP bids and authorize staff to re-advertise Agreement#26-007.
2.Provide alternative direction to staff.
CEQA:Not a project.
CITY OF UPLAND
AGREEMENT FOR GENERAL SERVICES
GRAFFITI REMOVAL SERVICES
1. PARTIES AND DATE
This Agreement for Graffiti Removal Services ("Agreement") 22nd day of June, 2026 by and between the City of Upland, a municipal corporation organized under the laws of the State of California with its principal place of business at 460 N. Euclid Avenue, Upland, CA 91786 ("City") and, Graffiti Protective Coatings, Inc., a California Corporation with its principal place of business at 4624 Florence Ave., Bell, CA, 90201 ("Contractor"). City and Contractor are sometimes individually referred to as "Party" and collectively as "Parties" in this Agreement.
2. RECITALS
2.1 Contractor.
Contractor desires to perform and assume responsibility for the provision of certain Graffiti Removal Services required by City on the terms and conditions set forth in this Agreement.
Contractor represents that it is experienced in providing graffiti removal services to public clients, is licensed in the State of California, and is familiar with the plans of City.
2.2 Project.
City desires to engage Contractor to render such services for the Solar Panel Cleaning Services ("Project") as set forth in this Agreement.
3. TERMS
3.1 Scope of Services and Term.
3.1.1 General Scope of Services. Contractor promises and agrees to furnish to City all labor, materials, tools, equipment, services, and incidental and customary work necessary to fully and adequately supply the services and advice on various issues affecting the decisions of City regarding the Project and on other programs and matters affecting City ("Services"). The Services are more particularly described in Exhibit "A" attached hereto and incorporated herein by reference. All Services shall be subject to, and performed in accordance with, this Agreement, the exhibits attached hereto and incorporated herein by reference, and all applicable local, state and federal laws, rules and regulations.
3.1.2 Term. The term of this Agreement shall be from July 1, 2026 through June 30, 2029, unless earlier terminated as provided herein. The City shall have the unilateral option, at its sole discretion, to renew this Agreement automatically for no more than (4) additional one-year terms. Contractor shall complete the Services within the term of this Agreement and shall meet any other established schedules and deadlines. The Parties may, by mutual, written consent, extend the term of this Agreement if necessary to complete the Services.
3.2 Compensation.
3.2.1 Compensation. Contractor shall receive compensation, including authorized reimbursements, for all Services rendered under this Agreement at the rates set forth in Exhibit "B" attached hereto and incorporated herein by reference. The total annual compensation shall not exceed the amounts identified in Exhibit B plus any amounts due for Extra Work in accordance with Section 3.2.4."
1 AGREEMENT FOR GENERAL SERVICES
3.2.2 Payment of Compensation. Contractor shall submit to City a monthly itemized statement which indicates work completed and hours of Services rendered by Contractor. The statement shall describe the amount of Services and supplies provided since the initial commencement date, or since the start of the subsequent billing periods, as appropriate, through the date of the statement. City shall, within forty-five (45) days of receiving such statement, review the statement and pay all approved charges thereon.
3.2.3 Reimbursement for Expenses. Contractor shall not be reimbursed for any expenses unless authorized in writing by City.
3.2.4 Additional Work. At any time during the term of this Agreement, City may request that Contractor perform Extra Work. As used herein, "Extra Work" means any work which is determined by City to be necessary for the proper completion of the Project, but which the parties did not reasonably anticipate would be necessary at the execution of this Agreement.
The City Manager may approve Extra Work up to ten percent (10°/0) of the amount of the Agreement or fifty thousand dollars ($50,000.00). Any Extra Work in excess of this amount shall be approved by the City Council. Contractor shall not perform, nor be compensated for, Extra Work without written authorization from City's Representative.
3.3 Responsibilities of Contractor.
3.3.1 Control and Payment of Subordinates; Independent Contractor. The Services shall be performed by Contractor or under its supervision. Contractor will determine the means, methods and details of performing the Services subject to the requirements of this Agreement. City retains Contractor on an independent contractor basis and not as an employee of City. Contractor retains the right to perform similar or different services for others during the term of this Agreement. Any personnel performing the Services under this Agreement on behalf of Contractor shall also not be employees of City and shall at all times be under Contractor's exclusive direction and control. Neither City, or any of its officials, officers, directors, employees or agents shall have control over the conduct of Contractor or any of Contractor's officers, employees or agents, except as set forth in this Agreement. Contractor shall pay all wages, salaries, and other amounts due such personnel in connection with their performance of Services under this Agreement and as required by law. Contractor shall be responsible for all reports and obligations respecting such additional personnel, including, but not limited to: social security taxes, income tax withholding, unemployment insurance, disability insurance, and workers' compensation insurance
(a) PERS Eligibility Indemnification. In the event that Contractor or any employee, agent, or subcontractor of Contractor providing services under this Agreement claims or is determined by a court of competent jurisdiction or the California Public Employees Retirement System ("PERS") to be eligible for enrollment in PERS as an employee of the City, Contractor shall indemnify, defend, and hold harmless City for the payment of any employee and/or employer contributions for PERS benefits on behalf of Contractor or its employees, agents, or subcontractors, as well as for the payment of any penalties and interest on such contributions, which would otherwise be the responsibility of City.
Notwithstanding any other agency, state or federal policy, rule, regulation, law or ordinance to the contrary, Contractor and any of its employees, agents, and subcontractors providing service under this Agreement shall not qualify for or become entitled to, and hereby agree to waive any claims to, any compensation, benefit, or any incident of employment by City, including but not limited to eligibility to enroll in PERS as an employee of City and entitlement to any contribution to be paid by City for employer contribution and/or employee contributions for PERS benefits..
2 AGREEMENT FOR GENERAL SERVICES
3.3.2 Schedule of Services/Time for Performance.
(a) Contractor shall perform the Services expeditiously, within the term of this Agreement, and in accordance with the Schedule of Services set forth in Exhibit "B" attached hereto and incorporated herein by reference. Contractor represents that it has the skilled personnel required to perform the Services in conformance with such conditions. In order to facilitate Contractor's conformance with the Schedule, City shall respond to Contractor's submittals in a timely manner. Upon request of City, Contractor shall provide a more detailed schedule of anticipated performance to meet the Schedule of Services. (b) Neither City nor Contractor shall be considered in default of this Agreement for delays in performance caused by circumstances beyond the reasonable control of the non-performing Party. For purposes of this Agreement, such circumstances include a Force Majeure Event. A Force Majeure Event shall mean an event that materially affects a Party's performance and is one or more of the following: (1) Acts of God or other natural disasters; (2) terrorism or other acts of a public enemy; (3)orders of governmental authorities(including,without limitation, unreasonable and unforeseeable delay in the issuance of permits or approvals by governmental authorities that are required for the services); (4) strikes and other organized labor action occurring at the site and the effects thereof on the services, only to the extent such strikes and other organized labor action are beyond the control of Contractor and its subcontractors, and to the extent the effects thereof cannot be avoided by use of replacement workers; and (5) pandemics, epidemics or quarantine restrictions. For purposes of this section, "orders of governmental authorities," includes ordinances, emergency proclamations and orders, rules to protect the public health, welfare and safety, and other actions of a public agency applicable to the services and Agreement.
(c) Should a Force Majeure Event occur, the non-performing Party shall, within a reasonable time of being prevented from performing, give written notice to the other Party describing the circumstances preventing continued performance and the efforts being made to resume performance of this Agreement. Force Majeure Events and/or delays, regardless of the Party responsible for the delay, shall not entitle Contractor to any additional compensation.
Notwithstanding the foregoing in this section, the City may still terminate this Agreement in accordance with the termination provisions of this Agreement.
3.3.3 Conformance to Applicable Requirements. All work prepared by Contractor shall be subject to the approval of City.
3.3.4 Substitution of Key Personnel. Contractor has represented to City that certain key personnel will perform and coordinate the Services under this Agreement. Should one or more of such personnel become unavailable, Contractor may substitute other personnel of at least equal competence and experience upon written approval of City. In the event that City and Contractor cannot agree as to the substitution of key personnel, City shall be entitled to terminate this Agreement for cause. As discussed below, any personnel who fail or refuse to perform the Services in a manner acceptable to City, or who are determined by City to be uncooperative, incompetent, a threat to the adequate or timely completion of the Project or a threat to the safety of persons or property, shall be promptly removed from the Project by Contractor at the request of City. The key personnel for performance of this Agreement are as follows: Public Works Operations Manager, or his or her designee.
3.3.5 City's Representative. City hereby designates the Public Works Operations Manager, or his or her designee , or his or her designee, to act as its representative for the performance of this Agreement ("City's Representative"). City's Representative shall have the power to act on behalf of City for all purposes under this Agreement. Contractor shall not accept direction or orders from any person other than City's Representative or his or her designee. 3 AGREEMENT FOR GENERAL SERVICES
3.3.6 Contractor's Representative. Contractor hereby designates the Company President, or his or her designee, to act as its representative for the performance of this Agreement ("Contractor's Representative"). Contractor's Representative shall have full authority to represent and act on behalf of Contractor for all purposes under this Agreement. Contractor's Representative shall supervise and direct the Services, using his or her best skill and attention, and shall be responsible for all means, methods, techniques, sequences and procedures and for the satisfactory coordination of all portions of the Services under this Agreement.
3.3.7 Coordination of Services. Contractor agrees to work closely with City staff in the performance of Services and shall be available to City's staff, contractors and other staff at all reasonable times.
3.3.8 Standard of Care; Performance of Employees. Contractor shall perform all Services under this Agreement in a skillful and competent manner, consistent with the standards generally recognized as being employed by contractors in the same discipline in the State of California. Contractor represents and maintains that it is skilled in the calling necessary to perform the Services. Contractor warrants that all employees and subcontractors shall have sufficient skill and experience to perform the Services assigned to them. Contractor represents that it, its employees and subcontractors have all licenses, permits, qualifications and approvals of whatever nature that are legally required to perform the Services, including any required business license, and that such licenses and approvals shall be maintained throughout the term of this Agreement. Contractor shall perform, at its own cost and expense and without reimbursement from City, any services necessary to correct errors or omissions which are caused by Contractor's failure to comply with the standard of care provided for herein and shall be fully responsible to City for all damages and other liabilities provided for in the indemnification provisions of this Agreement arising from the Contractor's errors and omissions.. Any employee of Contractor or its subcontractors who is determined by City to be uncooperative, incompetent, a threat to the adequate or timely completion of the Project, a threat to the safety of persons or property, or any employee who fails or refuses to perform the Services in a manner acceptable to City, shall be promptly removed from the Project by Contractor and shall not be re-employed to perform any of the Services or to work on the Project.
3.3.9 Laws and Regulations. Contractor shall keep itself fully informed of and in compliance with all local, state and federal laws, rules and regulations in any manner affecting the performance of the Project or the Services, including all Cal/OSHA requirements, and shall give all notices required by law. Contractor shall be liable for all violations of such laws and regulations in connection with Services. If Contractor performs any work knowing it to be contrary to such laws, rules and regulations and without giving written notice to City, Contractor shall be solely responsible for all costs arising therefrom. Contractor shall defend, indemnify and hold City, its officials, officers, employees and agents free and harmless, pursuant to the indemnification provisions of this Agreement, from any claim or liability arising out of any failure or alleged failure to comply with such laws, rules or regulations.
3.3.10 Insurance.
(a) Time for Compliance. Contractor shall not commence work under this Agreement until it has provided evidence satisfactory to the City that it has secured all insurance required under this section. In addition, Contractor shall not allow any subcontractor to commence work on any subcontract until it has provided evidence satisfactory to the City that the subcontractor has secured all insurance required under this section. Failure to provide and maintain all required insurance shall be grounds for the City to terminate this Agreement for cause. (b) Types of Insurance Required. As a condition precedent to the effectiveness of this Agreement for work to be performed hereunder, and without limiting the indemnity provisions of the Agreement, the Contractor, in partial performance of its obligations 4 AGREEMENT FOR GENERAL SERVICES
under such Agreement, shall procure and maintain in full force and effect during the term of the Agreement the following policies of insurance. If the existing policies do not meet the insurance requirements set forth herein, Contractor agrees to amend, supplement or endorse the policies to do so.
(1) Commercial General Liability: Commercial General Liability Insurance which affords coverage at least as broad as Insurance Services Office "occurrence" form CG 00 01, or the exact equivalent, with limits of not less than $2,000,000 per occurrence and no less than $4,000,000 in the general aggregate. Defense costs shall be paid in addition to the limits. The policy shall contain no endorsements or provisions (1) limiting coverage for contractual liability; (2) excluding coverage for claims or suits by one insured against another (cross-liability); (3) products/completed operations liability; or (4) containing any other exclusion(s) contrary to the terms or purposes of this Agreement. (2) Automobile Liability Insurance: Automobile Liability Insurance with coverage at least as broad as Insurance Services Office Form CA 00 01 covering "Any Auto" (Symbol 1), or the exact equivalent, covering bodily injury and property damage for all activities with limits of not less than $1,000,000 combined limit for each occurrence. (3) Workers' Compensation: Workers' Compensation Insurance, as required by the State of California and Employer's Liability Insurance with a limit of not less than $1,000,000 per accident for bodily injury and disease. (c) Insurance Endorsements. Required insurance policies shall contain the following provisions, or Contractor shall provide endorsements on forms approved by the City to add the following provisions to the insurance policies:
(1) Commercial General Liability: (1) Additional Insured: The City, its officials, officers, employees, agents, and volunteers shall be additional insureds with regard to liability and defense of suits or claims arising out of the performance of the Agreement.
Additional Insured Endorsements shall not (1) be restricted to "ongoing operations"; (2) exclude "contractual liability"; (3) restrict coverage to "sole" liability of Contractor; or (4) contain any other exclusions contrary to the terms or purposes of this Agreement. For all policies of Commercial General Liability insurance, Contractor shall provide endorsements in the form of ISO CG 20 10 10 01 and 20 37 10 01 (or endorsements providing the exact same coverage) to effectuate this requirement. (2) Cancellation: Required insurance policies shall not be canceled or the coverage reduced until a thirty (30) day written notice of cancellation has been served upon the City except ten (10) days shall be allowed for non-payment of premium. (2) Automobile Liability. (1) Cancellation: Required insurance policies shall not be canceled or the coverage reduced until a thirty (30) day written notice of cancellation has been served upon the City except ten (10)days shall be allowed for non-payment of premium.
(3) Workers' Compensation: (1) Cancellation: Required insurance policies shall not be canceled or the coverage reduced until a thirty (30) day written notice of cancellation has been served upon the City except ten (10) days shall be allowed for non-payment of premium. (2) Waiver of Subrogation: A waiver of subrogation stating that the insurer waives all rights of subrogation against the City, its officials, officers, employees, agents, and volunteers.
(d) Primary and Non-Contributing Insurance. All policies of Commercial General Liability and Automobile Liability insurance shall be primary and any other insurance, deductible, or self-insurance maintained by the City, its officials, officers, employees, 5 AGREEMENT FOR GENERAL SERVICES
agents, or volunteers shall not contribute with this primary insurance. Policies shall contain or be endorsed to contain such provisions.
(e) Waiver of Subrogation. All required insurance coverages shall contain or be endorsed to waiver of subrogation in favor of the City, its officials, officers, employees, agents, and volunteers or shall specifically allow Contractor or others providing insurance evidence in compliance with these specifications to waive their right of recovery prior to a loss. Contractor hereby waives its own right of recovery against City and shall require similar written express waivers and insurance clauses from each of its subcontractors. (f) Deductibles and Self-Insured Retentions. Any deductible or self- insured retention must be approved in writing by the City and shall protect the City, its officials, officers, employees, agents, and volunteers in the same manner and to the same extent as they would have been protected had the policy or policies not contained a deductible or self-insured retention.
(g) Evidence of Insurance. The Contractor, concurrently with the execution of the Agreement, and as a condition precedent to the effectiveness thereof, shall deliver either certified copies of the required policies, or original certificates on forms approved by the City, together with all endorsements affecting each policy. Required insurance policies shall not be in compliance if they include any limiting provision or endorsement that has not been submitted to the City for approval. The certificates and endorsements for each insurance policy shall be signed by a person authorized by that insurer to bind coverage on its behalf. At least fifteen (15 days) prior to the expiration of any such policy, evidence of insurance showing that such insurance coverage has been renewed or extended shall be filed with the City. If such coverage is cancelled or reduced and not replaced immediately so as to avoid a lapse in the required coverage, Contractor shall, within ten (10) days after receipt of written notice of such cancellation or reduction of coverage, file with the City evidence of insurance showing that the required insurance has been reinstated or has been provided through another insurance company or companies.
(h) Acceptability of Insurers. Each such policy shall be from a company or companies with a current A.M. Best's rating of no less than A:VI II and authorized to transact business of insurance in the State of California or otherwise allowed to place insurance through surplus line brokers under applicable provisions of the California Insurance Code or any federal law.
(i) Enforcement of Agreement Provisions (non estoppel). Contractor acknowledges and agrees that actual or alleged failure on the part of the City to inform Contractor of non-compliance with any requirement imposes no additional obligation on the City nor does it waive any rights hereunder.
(j) Requirements Not Limiting. Requirement of specific coverage or minimum limits contained in this Section are not intended as a limitation on coverage, limits, or other requirement, or a waiver of any coverage normally provided by any insurance. (k) Additional Insurance Provisions
(1) The foregoing requirements as to the types and limits of insurance coverage to be maintained by Contractor, and any approval of said insurance by the City, is not intended to and shall not in any manner limit or qualify the liabilities and obligations otherwise assumed by the Contractor pursuant to this Agreement, including but not limited to, the provisions concerning indemnification.
6 AGREEMENT FOR GENERAL SERVICES
(2) If at any time during the life of the Agreement, any policy of insurance required under this Agreement does not comply with these specifications or is canceled and not replaced, City has the right but not the duty to obtain the insurance it deems necessary and any premium paid by City will be promptly reimbursed by Contractor or City will withhold amounts sufficient to pay premium from Contractor payments. In the alternative, City may cancel this Agreement.
(3) The City may require the Contractor to provide complete copies of all insurance policies in effect for the duration of the Project. (4) Neither the City nor any of its officials, officers, employees, agents or volunteers shall be personally responsible for any liability arising under or by virtue of this Agreement.
(5) The limits set forth herein shall apply separately to each insured against whom claims are made or suits are brought, except with respect to the limits of liability. Further the limits set forth herein shall not be construed to relieve the Contractor from liability in excess of such coverage, nor shall it limit the Contractor's indemnification obligations to the City and shall not preclude the City from taking such other actions available to the City under other provisions of the Agreement or law.
(6) Contractor shall report to the City, in addition to Contractor's insurer, any and all insurance claims submitted by Contractor in connection with the Services under this Agreement.
(I) Insurance for Subcontractors. Contractor shall include all subcontractors engaged in any work for Contractor relating to this Agreement as additional insureds under the Contractor's policies, or the Contractor shall be responsible for causing subcontractors to purchase the appropriate insurance in compliance with the terms of these Insurance Requirements, including adding the City, its officials, officers, employees, agents, and volunteers as additional insureds to the subcontractor's policies. All policies of Commercial General Liability insurance provided by Contractor's subcontractors performing work relating to this Agreement shall be endorsed to name the City, its officials, officers, employees, agents and volunteers as additional insureds using endorsement form ISO CG 20 38 04 13 or an endorsement providing equivalent coverage. Contractor shall not allow any subcontractor to commence work on any subcontract relating to this Agreement until it has received satisfactory evidence of subcontractor's compliance with all insurance requirements under this Agreement, to the extent applicable. The Contractor shall provide satisfactory evidence of compliance with this section upon request of the City.
3.3.11 Safety. Contractor shall execute and maintain its work so as to avoid injury or damage to any person or property. In carrying out its Services, Contractor shall at all times be in compliance with all applicable local, state and federal laws, rules and regulations, and shall exercise all necessary precautions for the safety of employees appropriate to the nature of the work and the conditions under which the work is to be performed. Safety precautions as applicable shall include, but shall not be limited to: (A) adequate life protection and lifesaving equipment and procedures; (B) instructions in accident prevention for all employees and subcontractors, such as safe walkways, scaffolds, fall protection ladders, bridges, gang planks, confined space procedures, trenching and shoring, equipment and other safety devices, equipment and wearing apparel as are necessary or lawfully required to prevent accidents or injuries; and (C) adequate facilities for the proper inspection and maintenance of all safety measures.
7 AGREEMENT FOR GENERAL SERVICES
3.4 Labor Code Requirements.
3.4.1 Prevailing Wage. Contractor is aware of the requirements of California Labor Code Sections 1720 et seq. and 1770 et seq., which require the payment of prevailing wage rates and the performance of other requirements on certain "public works" and "maintenance" projects ("Prevailing Wage Laws"). If the Services are being performed as part of an applicable "public works" or"maintenance" project, as defined by the Prevailing Wage Laws, and if the total compensation is $1,000 or more, Contractor agrees to fully comply with such Prevailing Wage Laws. Contractor shall defend, indemnify and hold the City, its officials, officers, employees and agents free and harmless from any claims, liabilities, costs, penalties or interest arising out of any failure or alleged failure to comply with the Prevailing Wage Laws. It shall be mandatory upon the Contractor and all subcontractors to comply with all California Labor Code provisions, which include but are not limited to prevailing wages (Labor Code Sections 1771, 1774 and 1775), employment of apprentices (Labor Code Section 1777.5), certified payroll records (Labor Code Sections 1771.4 and 1776), hours of labor(Labor Code Sections 1813 and 1815) and debarment of contractors and subcontractors (Labor Code Section 1777.1). The requirement to submit certified payroll records directly to the Labor Commissioner under Labor Code section 1771.4 shall not apply to work performed on a public works project that is exempt pursuant to the small project exemption specified in Labor Code Section 1771.4.
3.4.2 Registration. If the Services are being performed as part of an applicable "public works" or "maintenance" project, then pursuant to Labor Code Sections 1725.5 and 1771.1, the Contractor and all subcontractors performing such Services must be registered with the Department of Industrial Relations. Contractor shall maintain registration for the duration of the Project and require the same of any subcontractors, as applicable. Notwithstanding the foregoing, the contractor registration requirements mandated by Labor Code Sections 1725.5 and 1771.1 shall not apply to work performed on a public works project that is exempt pursuant to the small project exemption specified in Labor Code Sections 1725.5 and 1771.1.
3.4.3 Compliance Monitoring. This Agreement may also be subject to compliance monitoring and enforcement by the Department of Industrial Relations. It shall be Contractor's sole responsibility to comply with all applicable registration and labor compliance requirements. Any stop orders issued by the Department of Industrial Relations against Contractor or any subcontractor that affect Contractor's performance of Services, including any delay, shall be Contractor's sole responsibility. Any delay arising out of or resulting from such stop orders shall be considered Contractor caused delay and shall not be compensable by the City. Contractor shall defend, indemnify and hold the City, its officials, officers, employees and agents free and harmless from any claim or liability arising out of stop orders issued by the Department of Industrial Relations against Contractor or any subcontractor.
3.4.4 Labor Certification. By its signature hereunder, Contractor certifies that it is aware of the provisions of Section 3700 of the California Labor Code which require every employer to be insured against liability for Workers' Compensation or to undertake self-insurance in accordance with the provisions of that Code and agrees to comply with such provisions before commencing the performance of the Services.
3.5 Termination of Agreement.
3.5.1 Grounds for Termination. City may, by written notice to Contractor, terminate the whole or any part of this Agreement at any time and without cause by giving written notice to Contractor of such termination, and specifying the effective date thereof, at least seven (7) days before the effective date of such termination. Upon termination, Contractor shall be compensated only for those services which have been fully and adequately rendered to City through the effective date of the termination, and Contractor shall be entitled to no further compensation. Contractor may not terminate this Agreement except for cause. The rights and 8 AGREEMENT FOR GENERAL SERVICES
remedies of the City provided in this section shall not be exclusive and are in addition to any other rights and remedies provided by law, equity or under this Agreement.
3.5.2 Effect of Termination. If this Agreement is terminated as provided herein, City may require Contractor to provide all finished or unfinished Documents and Data, as defined below, and other information of any kind prepared by Contractor in connection with the performance of Services under this Agreement. Contractor shall be required to provide such document and other information within fifteen (15) days of the request.
3.5.3 Additional Services. In the event this Agreement is terminated in whole or in part as provided herein, City may procure, upon such terms and in such manner as it may determine appropriate, services similar to those terminated.
3.6 Indemnification.
3.6.1 Scope of Indemnity. To the fullest extent permitted by law, Contractor shall defend, indemnify and hold the City, its officials, employees, agents and volunteers free and harmless from any and all claims, demands, causes of action, suits, actions, proceedings, costs, expenses, liability, judgments, awards, decrees, settlements, loss, damage or injury of any kind, in law or equity, regardless of whether the allegations are false, fraudulent, or groundless, to property or persons, including wrongful death, (collectively, "Claims") in any manner arising out of, pertaining to, or incident to any acts, errors or omissions, or willful misconduct of Contractor, its officials, officers, employees, subcontractors, consultants or agents in connection with the performance of the Contractor's Services, the Project or this Agreement, including without limitation the payment of all expert witness fees, attorneys' fees and other related costs and expenses. Notwithstanding the foregoing, to the extent required by Civil Code section 2782, Contractor's indemnity obligation shall not apply to such loss or damage which is caused by the sole negligence or willful misconduct of the City.
3.6.2 Additional Indemnity Obligations. Contractor shall defend, with counsel of City's choosing and at Contractor's own cost, expense and risk, any and all Claims covered by this section that may be brought or instituted against City or its officials, employees, agents and volunteers. In addition, Contractor shall pay and satisfy any judgment, award or decree that may be rendered against City or its officials, employees, agents and volunteers as part of any such claim, suit, action or other proceeding. Contractor shall also reimburse City for the cost of any settlement paid by City or its officials, employees, agents and volunteers as part of any such claim, suit, action or other proceeding. Such reimbursement shall include payment for City's attorney's fees and costs, including expert witness fees. Contractor shall reimburse City and its officials, employees, agents and volunteers, for any and all legal expenses and costs incurred by each of them in connection therewith or in enforcing the indemnity herein provided. Contractor's obligation to indemnify shall survive expiration or termination of this Agreement, and shall not be restricted to insurance proceeds, if any, received by the City, its officials, employees, agents and volunteers.
3.7 General Provisions.
3.7.1 Accounting Records. Contractor shall maintain complete and accurate records with respect to all costs and expenses incurred and fees charged under this Agreement.
All such records shall be clearly identifiable. Contractor shall allow a representative of City during normal business hours to examine, audit, and make transcripts or copies of such records and any other documents created pursuant to this Agreement. Contractor shall allow inspection of all work, data, documents, proceedings, and activities related to the Agreement for a period of three (3) years from the date of final payment under this Agreement. 9 AGREEMENT FOR GENERAL SERVICES
3.7.2 Independent Contractors and Subcontracting.
(a) Use of Contractors. Contractor is aware of statutory and case law regarding classification of workers as independent contractors, including California Labor Code Section 2750.3 and Dynamex Operations West, Inc. v. Superior Court, 4 Cal. 5th 903 (2018). To ensure that Contractor is in compliance with the California Labor Code, Contractor shall only utilize its employees to provide the Services. Contractor may not provide the services through any independent contractor, subcontractor or subconsultant("Subcontractor(s)") unless approved by the City as set forth in Section 3.7.2 below. Contractor represents and warrants that all personnel who perform the Services on Contractor's behalf are Contractor's employees, and that Contractor complies with all applicable laws, rules and regulations governing its employees, including, but not limited to, the California Labor Code, Unemployment Insurance Code and all applicable Industrial Welfare Commission Wage Orders.
(b) Prior Approval Required. Contractor shall not use any Subcontractor to provide the Services, or any portion of the work required by this Agreement, without prior written approval of City. In the event that City authorizes Contractor to use a Subcontractor, Contractor shall enter into a written agreement with the Subcontractor, which must include all provisions of the Agreement, including a restriction on the Subcontractor's use of further independent contractors, subcontractors or subconsultants without the City's prior written consent.
3.7.3 Delivery of Notices. All notices permitted or required under this Agreement shall be given to the respective parties at the following address, or at such other address as the respective parties may provide in writing for this purpose:
Contractor:
Graffiti Protective Coatings, Inc.
4624 Florence Ave
Bell, CA, 90201
Attn: Carla Lenhoff, President
City:
City of Upland
460 N. Euclid Avenue
Upland, CA 91786
Attn: City Manager
Such notice shall be deemed made when personally delivered or when mailed, forty-eight (48) hours after deposit in the U.S. Mail, first class postage prepaid and addressed to the party at its applicable address. Actual notice shall be deemed adequate notice on the date actual notice occurred, regardless of the method of service.
3.7.4 Cooperation; Further Acts. The Parties shall fully cooperate with one another and shall take any additional acts or sign any additional documents as may be necessary, appropriate or convenient to attain the purposes of this Agreement.
3.7.5 Attorneys' Fees. If either party commences an action against the other party, either legal, administrative or otherwise, arising out of or in connection with this Agreement, the prevailing party in such litigation shall be entitled to have and recover from the losing party reasonable attorneys' fees and all costs of such action. 10 AGREEMENT FOR GENERAL SERVICES
3.7.6 Entire Agreement. This Agreement contains the entire Agreement of the parties with respect to the subject matter hereof, and supersedes all prior negotiations, understandings or agreements. This Agreement may only be supplemented, amended or modified by a writing signed by both Parties.
3.7.7 Governing Law. This Agreement shall be governed by the laws of the State of California. Venue shall be in San Bernardino County.
3.7.8 Time of Essence. Time is of the essence for each and every provision of this Agreement.
3.7.9 City's Right to Employ Other Contractors. City reserves the right to employ other Contractors in connection with this Project.
3.7.10 Successors and Assigns. This Agreement shall be binding on the successors and assigns of the parties.
3.7.11 Assignment or Transfer. shall not assign, sublet, or transfer this Agreement or any rights under or interest in this Agreement without the written consent of the City, which may be withheld for any reason. Any attempt to so assign or so transfer without such consent shall be void and without legal effect and shall constitute grounds for termination.
3.7.12 Construction; References; Captions. Since the Parties or their agents have participated fully in the preparation of this Agreement, the language of this Agreement shall be construed simply, according to its fair meaning, and not strictly for or against any Party. Any term referencing time, days or period for performance shall be deemed calendar days and not workdays. All references to Contractor include all personnel, employees, agents, and subcontractors of Contractor, except as otherwise specified in this Agreement. All references to City include its elected officials, officers, employees, agents, and volunteers except as otherwise specified in this Agreement. The captions of the various articles and paragraphs are for convenience and ease of reference only, and do not define, limit, augment, or describe the scope, content, or intent of this Agreement.
3.7.13 Amendment; Modification. No supplement, modification, or amendment of this Agreement shall be binding unless executed in writing and signed by both Parties.
3.7.14 Waiver. No waiver of any default shall constitute a waiver of any other default or breach, whether of the same or other covenant or condition. No waiver, benefit, privilege, or service voluntarily given or performed by a Party shall give the other Party any contractual rights by custom, estoppel, or otherwise.
3.7.15 No Third-Party Beneficiaries. There are no intended third-party beneficiaries of any right or obligation assumed by the Parties.
3.7.16 Invalidity; Severability. If any portion of this Agreement is declared invalid, illegal, or otherwise unenforceable by a court of competent jurisdiction, the remaining provisions shall continue in full force and effect.
3.7.17 Prohibited Interests. Contractor maintains and warrants that it has not employed nor retained any company or person, other than a bona fide employee working solely for Contractor, to solicit or secure this Agreement. Contractor warrants that it has not paid nor has it agreed to pay any company or person, other than a bona fide employee working solely for Contractor, any fee, commission, percentage, brokerage fee, gift or other consideration contingent upon or resulting from the award or making of this Agreement. Contractor further agrees to file, or shall cause its employees or subcontractors to file, a Statement of Economic 11 AGREEMENT FOR GENERAL SERVICES
Interest with the City's Filing Officer as required under state law in the performance of the Services. For breach or violation of this warranty, City shall have the right to rescind this Agreement without liability. For the term of this Agreement, no member, officer or employee of City, during the term of his or her service with City, shall have any direct interest in this Agreement, or obtain any present or anticipated material benefit arising therefrom.
3.7.18 Equal Opportunity Employment. Contractor represents that it is an equal opportunity employer and it shall not discriminate against any subcontractor, employee or applicant for employment because of race, religion, color, national origin, handicap, ancestry, sex or age. Such non-discrimination shall include, but not be limited to, all activities related to initial employment, upgrading, demotion, transfer, recruitment or recruitment advertising, layoff or termination. Contractor shall also comply with all relevant provisions of any minority business enterprise program, affirmative action plan or other related programs or guidelines currently in effect or hereinafter enacted.
3.7.19 Authority to Enter Agreement. Contractor has all requisite power and authority to conduct its business and to execute, deliver, and perform the Agreement. Each Party warrants that the individuals who have signed this Agreement have the legal power, right, and authority to make this Agreement and bind each respective Party.
3.7.20 Counterparts. This Agreement may be signed in counterparts, each of which shall constitute an original.
3.7.21 Employment Adverse to City. Contractor shall notify City, and shall obtain City's written consent, prior to accepting work to assist with or participate in a third-party lawsuit or other legal or administrative proceeding against City during the term of this Agreement.
3.7.22 Conflict of Employment. Employment by Contractor of personnel currently on the payroll of City shall not be permitted in the performance of this Agreement, even though such employment may occur outside of the employee's regular working hours or on weekends, holidays or vacation time. Further, the employment by Contractor of personnel who have been on City's payroll within one year prior to the date of execution of this Agreement, where this employment is caused by and or dependent upon Contractor securing this or related Agreements with City, is prohibited.
3.7.23 Survival. All rights and obligations hereunder that by their nature are to continue after any expiration or termination of this Agreement, including, but not limited to, the indemnification and confidentiality obligations, and the obligations related to receipt of subpoenas or court orders, shall survive any such expiration or termination. [SIGNATURES ON FOLLOWING PAGE]
12 AGREEMENT FOR GENERAL SERVICES
SIGNATURE PAGE FOR AGREEMENT FOR GENERAL SERVICES
BETWEEN THE CITY OF UPLAND AND
GRAFFITI PROTECTIVE COATINGS, INC.
IN WITNESS WHEREOF, each of the Parties has caused this Agreement to be executed on the day and year first above written.
CITY OF UPLAND GRAFFITI PROTECTIVE COATINGS, INC.
Approved By:
By:
MICHAEL BLAY
City Manager Its: President .
Approved as to Form:
Printed Name: Carla Lenhoff .
Best Best & Krieger LLP
City Attorney By:
Its: Secretary .
Attested By:
Printed Name: Steve Lenhoff .
KERI JOHNSON
City Clerk
672447 .
CA State License Number
1000009570 .
DIR Registration Number
13 AGREEMENT FOR GENERAL SERVICES
EXHIBIT "A"
SCOPE OF SERVICES
All graffiti removal services to be provided in accordance with the following:
1. Hours.Contractor shall perform the services expeditiously and as needed by the City,seven (7)days per week, twenty-four hours per day, throughout the term of the Agreement. Once notified, Contractor has forty-eight(48) hours to remove graffiti.
2. Task Assignments. The city has established a graffiti reporting hotline as part of its abatement program.Throughout the term of the Agreement,Contractor shall access the City's"Graffiti Hotline" at(909)931-4127 a minimum of three(3)times per day at approximately 7:00 a.m., 12:00 p.m.(Noon) and 5:00 p.m. in order to determine the services needed by the City. Graffiti Hotline access must occur Monday thru Friday.
Unless otherwise instructed by the City's Representative, Contractor shall access the Graffiti Hotline on a daily basis (Five days per week) as noted in the aforementioned detail.
3. Task Completion. Upon task completion,a response with before&after photos are to be transmitted electrically to the reporting party email address. Photos must be digital and have GPS capability with work order number, address, zone, method, surface, time cleaned, square footage, moniker, total response time to web based system.
4. Surface Matching. Company shall be required to match paint color and finish with surrounding surface area to City Representative's satisfaction.
5. Work Order System. Contractor to provide option of web-based work order system. Contractor to input/manage work orders that may be viewed by City staff.
6. Smartphone App. Contractor to provide graffiti reporting via a Smartphone (No Charge) mobile app on Android or iPhone platform.
a. Requests are to be electronically submitted to work order system and assigned a work order number in real time.
b. Mobile App must be available on the App Store and Android marketplace at the cost to the contractor.
7. Special License and Permits. The Contractor shall have and maintain valid State of California Contractor's license(s) C-33 and/or C-61/D-38 and/or C-61/D-63. License(s) must be in good standing for the previous five (5) consecutive years without any official unresolved record of complaints registered or filed with the Board or California Department of Consumer Affairs. All applications of chemical controls, i.e., herbicides and pesticides, shall be done in compliance with governmental requirements.Applications of such materials shall be done by personnel licensed by the State of California, Department of Food and Agriculture. Contractor will obtain any permits required by local governmental agency for the use of special chemicals.
8. Dress Code and Appearance. All personnel of the Contractor shall be required to wear uniforms bearing the company name while on the project. Sufficient changes shall be provided to present a neat and clean appearance of personnel at all times. The uniform shall consist of a shirt, trousers and or short pants during the summer months and reflective safety jacket with company name during 14 EXHIBIT A SCOPE OF SERVICES
cool weather. Safety vests bearing the company name are not considered a part of the uniform but shall be required to be worn to comply with this contract document. (Failure of an employee to wear a uniform shall result in a$100.00 deduction and forfeiture per occurrence).
9. Personnel Special Requirements
a. Contractor shall employ sufficient personnel qualified by reason of education, training and experience to discharge the services agreed to be performed by Contractor.Contractor shall provide service of the highest quality at all times, and personnel retained to perform this service shall be temperate,competent and otherwise fully qualified to fulfill the Contractor's obligations under the agreement.
b. Contractor's employees shall be subject to the following minimum requirements, skills, abilities and knowledge:
i. All proper licenses for operation of equipment utilized by such employee. ii. Ability to operate and maintain equipment in accordance with the manufacturer's recommendations.
iii. Mechanical ability to make required operator adjustments to the equipment being used.
iv. Knowledgeable safety regulations as they relate to graffiti removal and traffic control.
v. Ability to communicate orally and in writing in English.
10. Special Requests.The Contractor may be requested by the City Operations staff to perform special tasks which are above their normal work schedule.
11. Traffic Control. In accordance with the Cal Trans Watch Manual,the Contractor shall notify City staff of his intent to begin Work at least one (1)day before Work is begun.The Contractor shall cooperate with local authorities relative to handling traffic through the area and shall make his own arrangements relative to keeping the working area clear of vehicles. If the Contractor permits traffic to operate in an unsafe manner and does not take appropriate safety measures(such as placement of markers or signs regarding the presence of workers near a roadway), the City may immediately suspend all Work until the Contractor has met all safety requirements. All vehicles used by the Contractor on the job site must be equipped with flashing yellow beacons of the type approved by the City.
When entering or leaving roadways carrying public traffic, the Contractor's equipment, whether empty or loaded, shall in all cases yield to public traffic. The Contractor shall make every effort to keep commercial driveways open during working hours. During and after working hours, all driveways shall be accessible with smooth and safe crossings through the construction area (State of California Traffic Manual or Work Area Traffic Control Handbook).
12. Protection of Existing Facilities and Structures. The Contractor shall exercise due care in protecting from damage all existing facilities, structures, and utilities both above surface and underground on the City's property.Any damage to City property deemed to be caused by the Contractor's negligence shall be corrected or paid for by the Contractor at no cost to the City. If the City requests or directs the Contractor to perform work in a given area, it will be the Contractor's responsibility to verify and locate any underground systems, i.e., utility lines. This does not release the Contractor of the responsibility for taking reasonable precaution when working in these areas. Any damage or problems shall be reported immediately to the City Special Provisions 27. 15 EXHIBIT A SCOPE OF SERVICES
13. National Pollution Discharge Elimination System (NPDES).The Contractor shall exercise due care in their operations to conform to the requirements of the NPDES general permit requirements.
14. City Liaison. The City's designated representative and/or the City's Operations Manager & Operation's Supervisor or their designee, and the Contractor's representative will meet on a weekly basis. The purpose of this meeting will be to discuss specific project problems. More frequent contact may be required separately from these meetings. The City's Operations Manager & Operation's Supervisor will review, and initial invoice items verified as completed prior to submittal to the Director of Public Works, or designee,for payment.The original invoice should be emailed to:
15. Contractor Negligence. Any damage to the City's property which has been determined to be due to the Contractor's negligence shall be corrected at no additional cost to the City.
16. Sound Control Requirements. The Contractor shall comply with all local sound control and noise level rules, regulations, and ordinances which apply to any work performed pursuant to the Contract.
17. Construction/Maintenance Equipment.The Contractor shall take all necessary precautions for safe operation of his equipment and the protection of the public from injury and damage from such equipment.
18. Additions/Deletions to Maintenance Specifications. The City reserves the right to make additions, deletions, revisions, and/or otherwise modify the General and Technical Maintenance Specifications. Any change in the specifications that causes the Contractor to suffer additional expenses may be negotiated upon written justification.
19. Invoices. Contractor shall submit invoices on a monthly basis invoices must include the following information: job number, address, square footage, method of removal, surface type, date, census block group number, and monthly totals of each category.
Failure to submit invoices in this format may result in non-payment until these requirements are met.
20. Inspections and/or Deficiencies. The City will monitor Contractor performance for compliance with the Scope of Services, performance standards, and contract requirements. If the City determines that services are deficient, the City will notify the Contractor in writing, identifying the nature of the deficiency and the required corrective action.
Upon written notice of a deficiency, the Contractor shall immediately take corrective action and, when requested by the City, provide a written corrective action plan within three (3) business days.
If the Contractor fails to correct a deficiency to the City's satisfaction within the prescribed timeframe,the City may,without limiting any other remedies available at law or in equity:
• Withhold or reduce payment.
• Perform or procure corrective services and deduct costs from amounts due. • Impose contractual penalties or liquidated damages. 16 EXHIBIT A SCOPE OF SERVICES
EXHIBIT "B"
SCHEDULE OF SERVICES / COMPENSATION SCHEDULE
Graffiti Protective Coatings, Inc. having examined the proposed Contract Documents and having visited the sites and examined the conditions affecting the work, hereby proposes and agrees to furnish all labor, materials, supplies and equipment, and to perform operations necessary to complete the work as required by the proposed Scope of Services and Minimum Frequency Schedule.
$Per $Per $Per
Item Month Month Month
No. Description
Year Year2 Year3
1. Graffiti Removal Services
As detailed in Scope of Services— $7,480 $7,680 $7,880 7 Days per week,24-Hours per day.
Total per Month $7,480 $7,680 $7,880
Total per Year
(Per Month Amount x 12) $89,760 $92,160 $94,560 17 EXHIBIT B
OV z7PL
:t:_ rY� CALIFORNIA LEVINE ACT DISCLOSURE STATEMENT ,fi
California Government Code Section 84308, commonly referred to as the "Levine Act," prohibits City Officers from participating in any action concerning a license, permit,other entitlement for use,franchise, or contract(collectively"license, permit,or contract")if they receive political contribution(s)from a party, or its agent(s), totaling more than $500 within the twelve (12) months before the proceeding, while a proceeding is pending, and for twelve (12) months following the date of a final decision in a proceeding.
The Levine Act also requires a member of the Upland City Council who has received such a contribution to disclose the contribution on the record of the proceeding and recuse themselves before the proceeding unless the violation has been properly cured.
Current Upland City Council Members are listed at:
https://www.uplandca.govicitv-council-treasurer
Parties and their Agents are responsible for accessing the link to review the names and disclosing their applicable contributions to City Officers on the record of a proceeding.
As a party to a proceeding,you are also required to provide information below about contributions made by you, your agents on behalf of you or your organization, your organization subject to the proceeding with the City, and any organization you direct or control pursuant to the aggregation rules at FPPC Reg. § 18438.5, except for uncompensated officers of a nonprofit organization. This form is to be submitted to the City of Upland and is a public record. If you have any questions about this form, please contact your City representative for assistance.
1. Have you or your company,or any agent/board member on behalf of you or your company/entity, made any political contributions of more than $500 to any Upland City Council Member in the 12 months preceding the date of the submission of your proposal or application,or the anticipated date of any Council action?
YES If yes, please identify the Council Member(s):
NO
2. Do you or your company/entity, or any agency on behalf of you or your company/entity, anticipate or plan to make any political contribution of more than $500 to any Upland City Council Member in the 12 months following any Council action related to your proposal or application? —YES If yes, please identify the Council Member(s):
X NO
Answering yes to either of the two questions above does not preclude the Uplar4City Council from awarding a contract or approving an application or any subsequent action:-lt"does, however, preclude the identified Council Member(s)from participating in any actions related to your proposal r application. 6-' ....,.
C! /3 II L f:' \\... .....--,e,
Date r Signature of authorized individual
45 �f1'1Yi-Y r gu 7'€(rf C. Ic 1 i-,4 6 r j i-'C.
Company/Applicant Name
Cil'AM" i-,rw'1 1 I7`
(Levine Act definitions on reverse side)
4c,°v °p`qt CITFUP LAND
o "The City of Gracious Living"
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DATE: June 22,2026
TO: MAYOR AND CITY COUNCIL
FROM: MICHAEL BLAY,CITY MANAGER
PREPARED BY:DAMIEN R.ARRULA,ASSISTANT CITY MANAGER
JESSICA GORDON,DEPUTY PUBLIC WORKS DIRECTOR-OPERATIONS
ALEX CARRASCO,OPERATIONS SUPERVISOR
SUBJECT: CONSIDER APPROVAL OF FIRST AMENDMENT TO THE MAINTENANCE SERVICES AGREEMENT WITH T.S.R.CONSTRUCTION&INSPECTION,INC.
RECOMMENDED ACTION:
It is recommended that the City Council approve a First Amendment to the Maintenance Services Agreement with T.S.R.Construction&Inspection,Inc.,to extend the term for an additional one-year period through June 30,2027,in an amount not to exceed$300,000 for On-Call Pavement Repair Services;and authorize the City Manager to execute the amendment.
GOAL STATEMENT
The proposed action supports the City's objective to provide excellent customer service to the community and continue the integrity of our sidewalks, curbs, gutters, and miscellaneous concrete repairs to the City maintenance standards and requirements.
BACKGROUND
On August 12,2024,the City Council approved an initial two(2)year Contract with T.S.R.Construction&Inspection, Inc.(TSR)for On-Call Concrete Pavement Repair Services with an option for three(3)additional one-year terms.The initial 2-year term will conclude on June 30, 2026. The contracted budget amount varies year-to-year based upon amount of funding approved by City Council in the biannual budget. A provision in the contract allows for a yearly adjustment to the contract unit costs based upon the Consumer Price Index (CPI) if the optional extensions are exercised.
ISSUES AND ANALYSIS
TSR has consistently delivered reliable, responsive, and high-quality concrete repair services including repairs to sidewalks, drive approaches, curbs, and gutters, while maintaining compliance with applicable Americans with Disabilities Act(ADA)requirements.Approval of the amendment will provide continuity of services and enable the City to continue utilizing a qualified and trusted contractor to efficiently address ongoing concrete maintenance and repair needs. The amendment will also ensure the City can respond promptly to routine maintenance requests, emergency repairs,and other unforeseen concrete-related infrastructure issues.
Maintaining this Agreement supports the City's commitment to preserving public infrastructure,enhancing pedestrian safety, and minimizing service disruptions to residents and businesses. Based on the contractor's demonstrated performance, competitive pricing, and ability to provide the personnel, equipment, and resources necessary to complete work in a timely and cost-effective manner,staff has determined that extending the Agreement is in the best interest of the City.
ENVIRONMENTAL DETERMINATION
The project has been assessed in accordance with the authority and criteria contained in the California Environmental Quality Act ("CEQA"), and the State CEQA Guidelines, and determined to be categorically exempt from further environmental review pursuant to Section 15301(c)(Existing Facilities), of CEQA Guidelines. The project involves repair and maintenance of existing public facilities and does not involve any expansion of use beyond that which exists.
FISCAL IMPACTS
The total fiscal impact is$300,000.There are available funds in the adopted biennial Fiscal Year 2026-27—2027-28 budget in Public Works, Street Maintenance,Other Services Account No. 1015401-5258.
ALTERNATIVES
Provide alternative direction to staff.
CEQA: Determined to be categorically exempt from further environmental review pursuant to Section 15301(c) (Existing Facilities),of the CEQA guidelines.
AMENDMENT NO. 1 TO
MAINTENANCE SERVICES AGREEMENT
WITH TSR CONSTRUCTION AND INSPECTIONS
This Amendment No. 1 to the Maintenance Service Agreement is made and entered into as of June 22, 2026 ("Effective Date"), by and between the City of Upland, a municipal corporation ("City") and TSR Construction and Inspections, a California corporation ("Consultant"). City and Consultant are sometimes referred to herein individually as a "Party" and collectively as "Parties."
RECITALS
A. WHEREAS, the City and the Consultant have entered into an agreement, dated August 12, 2024, for the purpose of providing On-Call Concrete Pavement Repair Services (the "Original Agreement").
B. WHEREAS, the Parties now desire to amend the Original Agreement in order to extend the term of the Original Agreement for an additional term of one (1) year, and to revise the compensation schedule to reflect a three percent (3%) increase to the bid item pricing for the continued performance of services in accordance with the compensation provisions of the Original Agreement.
NOW, THEREFORE, in consideration of the above recitals and the mutual covenants, conditions, and promises contained in this Amendment No. 1 and the Original Agreement, the Parties mutually agree as follows:
AGREEMENT
1. Incorporation of Recitals. The recitals listed above are true and correct and are hereby incorporated herein by this reference.
2. Term. The term of the Original Agreement shall be extended through June 30, 2027, unless earlier terminated.
3. Compensation. Exhibit D of the Original Agreement, entitled "Compensation" is hereby deleted in its entirety and replaced with a new Exhibit D, attached hereto and incorporated herein by this reference, which reflects the approved three percent (3%) increase to the pricing schedule effective July 1, 2026
4. Full Force. Except as amended by this Amendment No. 1, all provisions of the Original Agreement, including without limitation the indemnity and insurance provisions, shall remain in full force and effect and shall govern the actions of the Parties under this Amendment No. 1.
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5. Electronic Transmission. A manually signed copy of this Amendment No. 1 which is transmitted by facsimile, email or other means of electronic transmission shall be deemed to have the same legal effect as delivery of an original executed copy of this Amendment No. 1 for all purposes. This Amendment No. 1 may be signed using an electronic signature.
6. Counterparts. This Amendment No. 1 may be signed in counterparts, each of which shall constitute an original.
[SIGNATURES ON FOLLOWING PAGE]
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SIGNATURE PAGE FOR
AMENDMENT NO. 1 TO THE MAINTENANCE SERVICES AGREEMENT
WITH T.S.R. CONSTRUCTION & INSPECTION, INC.
IN WITNESS WHEREOF, the Parties hereto have executed this Amendment No. 1 on the Effective Date first herein above written.
CITY OF UPLAND CONSULTANT
APPROVED BY: TSR CONSTRUCTION AND
INSPECTIONS
Michael Blay Gabriel Zapirtan
City Manager President
ATTEST:
Keri Johnson Printed Name :
City Clerk Its:
APPROVED AS TO FORM:
Best Best & Krieger LLP
City Attorney
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EXHIBIT D
Compensation
Quantity Ranges—Remove and Reconstruct 8" PCC Curb only, Type A-1.
Cost per linear foot for removal and replacement of 8-inch curb only as requested.
Linear Ft. per Proposal
Work Location Unit Price/LF
10-100 $82.40
101-250 $72.10
251-500 $61.80
501-1,000 $61.80
Quantity Ranges—Remove and Reconstruct 8" Curb with 12" Gutter.
Cost per linear foot for removal and replacement of curb and gutter with a curb face of 8"-10" and a gutter width of 12" as requested.
Linear Ft. per Proposal
Work Location Unit Price/LF
10-100 $92.70
101-500 $92.70
501-1,000 $82.40
1,001-2,500 $82.40
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Quantity Ranges—Remove and Reconstruct 8" Curb with 18" Gutter.
Cost per linear foot for removal and replacement of curb and gutter with a curb face of 8"-10" and a gutter width of 18" as requested.
Linear Ft. per Proposal
Work Location Unit Price/LF
10-100 $92.70
101-500 $92.70
501-1,000 $92.70
1,001-2,500 $82.40
Quantity Ranges—Remove and Reconstruct 8" Curb with 24" Gutter.
Cost per linear foot for removal and replacement of curb and gutter with a curb face of 8"-10" and a gutter width of 24" as requested.
Linear Ft. per Proposal
Work Location Unit Price/LF
10-100 $92.70
101-500 $92.70
501-1,000 $92.70
1,001-2,500 $92.70
Quantity Ranges—Remove and Reconstruct existing 8" Rock Curb only.
Cost per linear foot for removal and replacement of 8-inch rock curb only as requested.
Linear Ft. per Proposal
Work Location Unit Price/LF
10-100 $133.90
101-250 $133.90
251-500 $123.60
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Quantity Ranges—Remove and Reconstruct existing 8" Rock Curb and Gutter.
Cost per linear foot for removal and replacement of rock curb and gutter with a curb face of 8"- 12" and a gutter width of 18" as requested.
Linear Ft. per Proposal
Work Location Unit Price/LF
10-100 $144.20
101-250 $144.20
251-500 $144.20
Quantity Ranges—Remove and Replace 4" Thick Sidewalk.
Cost per square foot for removal and replacement of 4-inch-thick PCC sidewalk as requested.
Square Ft. per Proposal
Work Location Unit Price/S.F.
10-100 $17.51
101-500 $16.48
501-1,000 $15.45
1,001-2,500 $15.45
Quantity Ranges—Remove and Replace 6" Thick PCC Sidewalk.
Cost per square foot for removal and replacement of 6-inch-thick PCC sidewalk as requested.
Square Ft. per Proposal
Work Location Unit Price/S.F.
10-100 $22.66
101-500 $20.60
501-1,000 $18.54
1,001-2,500 $18.54
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Quantity Ranges—Remove and Replace existing 6" Thick PCC Residential Driveway Approach.
Cost per square foot for removal and replacement of 6-inch-thick PCC residential driveway approach as requested.
Square Ft. per Proposal
Work Location Unit Price/SF
25-100 $25.75
101-500 $25.75
501-1,000 $20.60
Quantity Ranges—Remove and Replace existing 8" Thick PCC Spandrel/Cross Gutter.
Cost per sq. ft. for removal and replacement of 8-inch-thick PCC Spandrel/Cross Gutter.
Square Ft. per Proposal
Work Location Unit Price/SF
25-100 $82.40
101-500 $77.25
501-1,000 $72.10
Quantity Ranges—Remove and Replace existing Handicap Access Ramp.
Cost per square foot for removal and replacement of a 4-inch-thick handicap access ramp including truncated domes and curb replacement as requested.
Square Ft. per Proposal
Work Location Unit Price/SF
50-250 $51.50
251-750 $46.35
751-1,500 $41.20
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Quantity Ranges— Remove and Replace existing 4-inch Thick AC Pavement.
Cost per square foot for saw-cut,removal,and replacement of 4-inch-thick AC Pavement.
Square Ft. per Proposal
Work Location Unit Price/SF
10-100 $15.45
101- 500 $13.39
501-2,000 $10.30
Quantity Ranges— Remove and Replace existing 6-inch Thick AC Pavement.
Cost per square foot for saw-cut,removal, and replacement of 4-inch-thick AC Pavement.
Square Ft. per Proposal
Work Location Unit Price/SF
10- 100 $17.51
101 - 500 $15.45
501 - 1,000 $13.39
Quantity Ranges—Parkway Restoration
Cost per sq. ft. for parkway clearing, grading, installation of topsoil and restoration of irrigation.
Square Ft. per Proposal
Work Location Unit Price/SF
25 - 250 $30.90
251 - 700 $25.75
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CITY OF UPLAND
MAINTENANCE SERVICES AGREEMENT
ON-CALL CONCRETE PAVEMENT REPAIR SERVICES
1. PARTIES AND DATE.
This Agreement is made and entered into this 12th day of August, 2024 by and between the City of Upland, a general law city and municipal corporation organized under the laws of the State of California with its principal place of business at 460 N. Euclid Avenue, Upland, CA 91786 ("City") and T.S.R. Construction & Inspection, Inc., a California Corporation, with its principal place of business at 8264 Avenida Leon, Rancho Cucamonga, CA, 91730 ("Contractor"). City and Contractor are sometimes individually referred to as "Party" and collectively as "Parties" in this Agreement.
2. RECITALS.
2.1 Contractor.
Contractor desires to perform and assume responsibility for the provision of certain maintenance services required by the City on the terms and conditions set forth in this Agreement.
Contractor represents that it is experienced in providing On-Call Concrete Pavement Repair Services to public clients, that it and its employees or subcontractors have all necessary licenses and permits to perform the Services in the State of California, and that is familiar with the plans of City. Contractor shall not subcontract any portion of the work required by this Agreement, except as expressly stated herein, without prior written approval of City. Subcontracts, if any, shall contain a provision making them subject to all provisions stipulated in this Agreement.
2.2 Project.
City desires to engage Contractor to render such services for the On-Call Concrete Pavement Repairs Project ("Project") as set forth in this Agreement.
3. TERMS.
3.1 Scope of Services and Term.
3.1.1 General Scope of Services. Contractor promises and agrees to furnish to the City all labor, materials, tools, equipment, services, and incidental and customary work necessary to fully and adequately supply the professional On-Call Concrete Pavement Repair Services necessary for the Project ("Services"). The Services are more particularly described in Exhibit"A" attached hereto and incorporated herein by reference. All Services shall be subject to, and performed in accordance with, this Agreement, the exhibits attached hereto and incorporated herein by reference, and all applicable local, state, and federal laws, rules, and regulations.
3.1.2 Term. The term of this Agreement shall be from September 1, 2024 to June 30, 2026, unless earlier terminated as provided herein. The City shall have the unilateral option, at its sole discretion,to renew/extend this Agreement automatically for no more than three (3) additional one-year (1) terms. Contractor shall complete the Services within the term of this Agreement and shall meet any other established schedules and deadlines. The Parties may, by mutual, written consent, extend the term of this Agreement if necessary to complete the Services. - 1 -
•
3.2 Responsibilities of Contractor.
3.2.1 Control and Payment of Subordinates; Independent Contractor. The Services shall be performed by Contractor or under its supervision. Contractor will determine the means, methods, and details of performing the Services subject to the requirements of this Agreement. City retains Contractor on an independent contractor basis and not as an employee.
Contractor retains the right to perform similar or different services for others during the term of this Agreement. Any additional personnel performing the Services under this Agreement on behalf of Contractor shall also not be employees of City and shall at all times be under Contractor's exclusive direction and control. Contractor shall pay all wages, salaries, and other amounts due such personnel in connection with-their-performance-of Services under this Agreement and as-required by law. Contractor shall be responsible for all reports and obligations respecting such additional personnel, including, but not limited to: social security taxes, income tax withholding, unemployment insurance, disability insurance, and workers' compensation insurance.
3.2.1.1 PERS Eligibility Indemnification. In the event that Contractor or any employee, agent, or subcontractor of Contractor providing services under this Agreement claims or is determined by a court of competent jurisdiction or the California Public Employees Retirement System ("PERS") to be eligible for enrollment in PERS as an employee of the City, Contractor shall indemnify, defend, and hold harmless City for the payment of any employee and/or employer contributions for PERS benefits on behalf of Contractor or its employees, agents, or subcontractors, as well as for the payment of any penalties and interest on such contributions, which would otherwise be the responsibility of City.
Notwithstanding any other agency, state or federal policy, rule, regulation, law or ordinance to the contrary, Contractor and any of its employees, agents, and subcontractors providing service under this Agreement shall not qualify for or become entitled to, and hereby agree to waive any claims to, any compensation, benefit, or any incident of employment by City, including but not limited to eligibility to enroll in PERS as an employee of City and entitlement to any contribution to be paid by City for employer contribution and/or employee contributions for PERS benefits.
3.2.2 Schedule of Services. Contractor shall perform the Services expeditiously, within the term of this Agreement, Contractor represents that it has the professional and technical personnel required to perform the Services in conformance with such conditions. In order to facilitate Contractor's conformance with the Schedule, City shall respond to Contractor's submittals in a timely manner. Upon request of City, Contractor shall provide a more detailed schedule of anticipated performance to meet the Schedule of Services.
3.2.3 Conformance to Applicable Requirements. All work prepared by Contractor shall be subject to the approval of City.
3.2.4 City's Representative. The City hereby designates Public Works Director, or his or her designee, to act as its representative for the performance of this Agreement ("City's Representative"). City's Representative shall have the power to act on behalf of the City for all purposes under this Agreement. Contractor shall not accept direction or orders from any person other than the City's Representative or his or her designee.
3.2.5 Contractor's Representative. Contractor hereby designates the Project Manager, or his or her designee,to act as its representative for the performance of this Agreement (such as "Contractor's Representative"). Contractor's Representative shall have full authority to represent and act on behalf of the Contractor for all purposes under this Agreement. The Contractor's Representative shall supervise and direct the Services, using his or her best skill and attention, and shall be responsible for all means, methods, techniques, sequences, and procedures and for the satisfactory coordination of all portions of the Services under this Agreement.
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3.2.6 Coordination of Services. Contractor agrees to work closely with City staff in the performance of Services and shall be available to City's staff, consultants, and other staff at all reasonable times.
3.2.7 Standard of Care; Performance of Employees. Contractor shall perform all Services under this Agreement in a skillful and competent manner, consistent with the standards generally recognized as being employed by professionals in the same discipline in the State of California. Contractor represents and maintains that it is skilled in the professional calling necessary to perform the Services. Contractor warrants that all employees and subcontractors shall have sufficient skill and experience to perform the Services assigned to them. Finally, Contractor represents that it, its employees, and subcontractors have all licenses, permits, qualifications and approvals of whatever nature that are legally required to perform the Services, including a City Business License, and that such licenses and approvals shall be maintained throughout the term of this Agreement. As provided for in the indemnification provisions of this Agreement, Contractor shall perform, at its own cost and expense and without reimbursement from the City, any services necessary to correct errors or omissions which are caused by the Contractor's failure to comply with the standard of care provided for herein. Any employee of the Contractor or its sub-contractors who is determined by the City to be uncooperative, incompetent, a threat to the adequate or timely completion of the Project, a threat to the safety of persons or property, or any employee who fails or refuses to perform the Services in a manner acceptable to the City, shall be promptly removed from the Project by the Contractor and shall not be re-employed to perform any of the Services or to work on the Project.
3.2.8 Period of Performance. Contractor shall perform and complete all Services under this Agreement within the term set forth in Section 3.1.2 above ("Performance Time").
3.2.9 Disputes. Should any dispute arise respecting the true value of any work done, of any work omitted, or of any extra work which Contractor may be required to do or respecting the size of any payment to Contractor during the performance of this Contract, Contractor shall continue to perform the Work while said dispute is decided by the City. If Contractor disputes the City's decision, Contractor shall have such remedies as may be provided by law.
3.2.10 Laws and Regulations; Employee/Labor Certifications. Contractor shall keep itself fully informed of and in compliance with all local, state, and federal laws, rules and regulations in any manner affecting the performance of the Project or the Services, including all Cal/OSHA requirements, and shall give all notices required by law. Contractor shall be liable for all violations of such laws and regulations in connection with Services. If the Contractor performs any work knowing it to be contrary to such laws, rules, and regulations and without giving written notice to the City, Contractor shall be solely responsible for all costs arising therefrom. City is a public entity of the State of California subject to certain provisions of the Health & Safety Code, Government Code, Public Contract Code, and Labor Code of the State. It is stipulated and agreed that all provisions of the law applicable to the public contracts of a municipality are a part of this Agreement to the same extent as though set forth herein and will be complied with. These include but are not limited to the payment of prevailing wages, the stipulation that eight (8) hours' labor shall constitute a legal day's work and that no worker shall be permitted to work in excess of eight (8) hours during any one calendar day except as permitted by law. Contractor shall defend, indemnify, and hold City, its officials, directors, officers, employees, and agents free and harmless, pursuant to the indemnification provisions of this Agreement, from any claim or liability arising out of any failure or alleged failure to comply with such laws, rules, or regulations. -3 -
3.2.10.1 Employment Eligibility; Contractor. By executing this Agreement, Contractor verifies that it fully complies with all requirements and restrictions of state and federal law respecting the employment of undocumented aliens, including, but not limited to, the Immigration Reform and Control Act of 1986, as may be amended from time to time. Such requirements and restrictions include, but are not limited to, examination and retention of documentation confirming the identity and immigration status of each employee of the Contractor.
Contractor also verifies that it has not committed a violation of any such law within the five (5) years immediately preceding the date of execution of this Agreement and shall not violate any such law at any time during the term of the Agreement. Contractor shall avoid any violation of any such law during the term of this Agreement by participating in an electronic verification of work authorization program operated by the United States Department of Homeland Security, by participating in an equivalent federal work authorization program operated by the United States Department of Homeland Security to verify information of newly hired employees, or by some other legally acceptable method. Contractor shall maintain records of each such verification and shall make them available to the City or its representatives for inspection and copy at any time during normal business hours. The City shall not be responsible for any costs or expenses related to Contractor's compliance with the requirements provided for in Section 3.2.10 or any of its sub- sections.
3.2.10.2 Employment Eligibility; Subcontractors, Sub-subcontractors, and Consultants. To the same extent and under the same conditions as Contractor, Contractor shall require all of its subcontractors, sub-subcontractors and consultants performing any work relating to the Project or this Agreement to make the same verifications and comply with all requirements and restrictions provided for in Section 3.2.10.1.
3.2.10.3 Employment Eligibility: Failure to Comply. Each person executing this Agreement on behalf of Contractor verifies that they are a duly authorized officer of Contractor, and understands that any of the following shall be grounds for the City to terminate the Agreement for cause: (1) failure of Contractor or its subcontractors, sub-subcontractors or consultants to meet any of the requirements provided for in Sections 3.2.10.1 or 3.2.10.2; (2) any misrepresentation or material omission concerning compliance with such requirements (including in those verifications provided to the Contractor under Section 3.2.10.2); or (3) failure to immediately remove from the Project any person found not to be in compliance with such requirements.
3.2.10.4 Labor Certification. By its signature hereunder, Contractor certifies that it is aware of the provisions of Section 3700 of the California Labor Code which require every employer to be insured against liability for Workers' Compensation or to undertake self-insurance in accordance with the provisions of that Code and agrees to comply with such provisions before commencing the performance of the Services.
3.2.10.5 Equal Opportunity Employment. Contractor represents that it is an equal opportunity employer, and it shall not discriminate against any subcontractor, employee, or applicant for employment because of race, religion, color, national origin, handicap, ancestry, sex or age. Such non-discrimination shall include, but not be limited to, all activities related to initial employment, upgrading, demotion, transfer, recruitment or recruitment advertising, layoff, or termination.
3.2.10.6 Air Quality. Contractor must fully comply with all applicable laws, rules and regulations in furnishing or using equipment and/or providing services, including, but not limited to, emissions limits and permitting requirements imposed by the California Air Resources Board (CARB). Contractor shall specifically be aware of the CARB limits and requirements' application to "portable equipment", which definition is considered by CARB to include any item of equipment with a fuel-powered engine. Contractor shall indemnify City against any fines or penalties imposed by CARB or any other governmental or regulatory agency for -4 -
violations of applicable laws, rules and/or regulations by Contractor, its subcontractors, or others for whom Contractor is responsible under its indemnity obligations provided for in this Agreement.
3.2.10.7 Water Quality.
(A) Manaqement and Compliance. To the extent applicable, Contractor's Services must account for, and fully comply with, all local, state and federal laws, rules and regulations that may impact water quality compliance, including, without limitation, all applicable provisions of the Federal Water Pollution Control Act (33 U.S.C. §§ 1300); the California Porter-Cologne Water Quality Control Act (Cal Water Code §§ 13000-14950); laws, rules and-regulations of-the-Environmental Protection Agency the State Water Resources Control Board; the City's ordinances regulating discharges of storm water; and any and all regulations,policies, or permits issued pursuant to any such authority regulating the discharge of pollutants, as that term is used in the Porter-Cologne Water Quality Control Act, to any ground or surface water in the State.
(B) Liability for Non-Compliance. Failure to comply with the laws, regulations and policies described in this Section is a violation of law that may subject Contractor or City to penalties, fines, or additional regulatory requirements. Contractor shall defend, indemnify and hold the City, its directors, officials, officers, employees, volunteers and agents free and harmless, pursuant to the indemnification provisions of this Agreement, from and against any and all fines, penalties, claims or other regulatory requirements imposed as a result of Contractor's non-compliance with the laws, regulations and policies described in this Section, unless such non-compliance is the result of the sole established negligence,willful misconduct or active negligence of the City, its officials, officers, agents, employees or authorized volunteers. (C) Training. In addition to any other standard of care requirements set forth in this Agreement, Contractor warrants that all employees and subcontractors shall have sufficient skill and experience to perform the Services assigned to them without impacting water quality in violation of the laws, regulations and policies described in this Section. Contractor further warrants that it, its employees, and subcontractors will receive adequate training, as determined by City, regarding the requirements of the laws, regulations and policies described in this Section as they may relate to the Services provided under this Agreement. Upon request, City will provide Contractor with a list of training programs that meet the requirements of this paragraph.
3.2.11 Insurance.
3.2.11.1 Time for Compliance. Contractor shall not commence Work under this Agreement until it has provided evidence satisfactory to the City that it has secured all insurance required under this Section. In addition, Contractor shall not allow any subcontractor to commence work on any subcontract until it has provided evidence satisfactory to the City that the subcontractor has secured all insurance required under this Section.
3.2.11.2 Minimum Requirements. Contractor shall, at its expense, procure and maintain for the duration of the Agreement insurance against claims for injuries to persons or damages to property which may arise from or in connection with the performance of the Agreement by the Contractor, its agents, representatives, employees, or subcontractors.
Contractor shall also require all of its subcontractors to procure and maintain the same insurance for the duration of the Agreement. Such insurance shall meet at least the following minimum levels of coverage:
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(A) Minimum Scope of Insurance. Coverage shall be at least as broad as the latest version of the following: (1) General Liability: Insurance Services Office Commercial General Liability coverage (occurrence form CG 0001); (2) Automobile Liability:
Insurance Services Office Business Auto Coverage form number CA 0001, code 1 (any auto); and (3) Workers' Compensation and Employer's Liability: Workers' Compensation insurance as required by the State of California and Employer's Liability Insurance. The policy shall not contain any exclusion contrary to the Agreement, including but not limited to endorsements or provisions limiting coverage for (1) contractual liability (including but not limited to ISO CG 24 26 or 21 29); or (2) cross liability for claims or suits by one insured against another. (B) Minimum Limits of Insurance. Contractor shall maintain limits no less than: (1)General Liability: One million dollars ($1,000,000) per occurrence for bodily injury, personal injury, and property damage. If Commercial General Liability Insurance or other form with a general aggregate limit is used, either the general aggregate limit shall apply separately to this project/location or the general aggregate limit shall be twice the required occurrence limit. (2) Automobile Liability: One million dollars ($1,000,000) per accident for bodily injury and property damage. (3) Worker's Compensation as required by the State of Califorrili:1;•Employer's Liability: One million dollars ($1,000,000) per accident for bodily injury or disease. (4) Professional Liability coverage: Two million ($2,000,000) per claim and in aggregate. (C) Notices; Cancellation or Reduction of Coverage. At least fifteen (15) days prior to the expiration of any such policy, evidence showing that such insurance coverage has been renewed or extended shall be filed with the City. If such coverage is cancelled or materially reduced, Contractor shall, within ten (10) days after receipt of written notice of such cancellation or reduction of coverage, file with the City evidence of insurance showing that the required insurance has been reinstated or has been provided through another insurance company or companies. In the event any policy of insurance required under this Agreement does not comply with these specifications or is canceled and not replaced, the City has the right but not the duty to obtain the insurance it deems necessary, and any premium paid by the City will be promptly reimbursed by Contractor or the City may withhold amounts sufficient to pay premium from Contractor payments. In the alternative, the City may suspend or terminate this Agreement. (D) Additional Insured. The City of Upland, its directors, officials, officers, employees, agents, and volunteers shall be named as additional insureds on Contractor's and its subcontractors' policies of commercial general liability and automobile liability insurance using the endorsements and forms specified herein or exact equivalents.
3.2.11.3 Insurance Endorsements. The insurance policies shall contain the following provisions, or Contractor shall provide endorsements on forms supplied or approved by the City to add the following provisions to the insurance policies:
(A) General Liability. The general liability policy shall include or be endorsed (amended)to state that: (1) using ISO CG forms 20 10 and 20 37, or endorsements providing the exact same coverage, the City of Upland, its directors, officials, officers, employees, agents, and volunteers shall be covered as additional insured with respect to the Services or ongoing and complete operations performed by or on behalf of the Contractor, including materials, parts or equipment furnished in connection with such work; and (2) using ISO form 20 01, or endorsements providing the exact same coverage, the insurance coverage shall be primary insurance as respects the City, its directors, officials, officers, employees, agents, and volunteers, or if excess, shall stand in an unbroken chain of coverage excess of the Contractor's scheduled underlying coverage. Any excess insurance shall contain a provision that such coverage shall also apply on a primary and noncontributory basis for the benefit of the City before the City's own primary insurance or self-insurance shall be called upon to protect it as a named insured. Any insurance or self-insurance maintained by the City, its directors, officials, officers, employees, agents, and volunteers shall be excess of the Contractor's insurance and shall not be called upon to contribute with it in any way. Notwithstanding the minimum limits set forth in Section -6-
3.2.11.2(B), any available insurance proceeds in excess of the specified minimum limits of coverage shall be available to the parties required to be named as additional insureds pursuant to this Section 3.2.11.3(A).
(B) Automobile Liability. The automobile liability policy shall include or be endorsed (amended) to state that: (1) the City, its directors, officials, officers, employees, agents, and volunteers shall be covered as additional insureds with respect to the ownership, operation, maintenance, use, loading or unloading of any auto owned, leased, hired or borrowed by the Contractor or for which the Contractor is responsible; and (2) the insurance coverage shall be primary insurance as respects the City, its directors, officials, officers, employees, agents, and volunteers, or if excess, shall stand in an unbroken chain of coverage excess of the Contractor's scheduled underlying coverage. Any insurance or self-insurance maintained by the City, its directors, officials, officers, employees, agents, and volunteers shall be excess of the Contractor's insurance and shall not be called upon to contribute with it in any way.
Notwithstanding the minimum limits set forth in Section 3.2.11.2(B), any available insurance proceeds in excess of the specified minimum limits of coverage shall be available to the parties required to be named as additional insureds pursuant to this Section 3.2.11.3(B). (C) Workers' Compensation and Employer's Liability Coverage.
The insurer shall agree to waive all rights of subrogation against the City, its directors, officials, officers, employees, agents, and volunteers for losses paid under the terms of the insurance policy which arise from work performed by the Contractor. (D) All Coverages. Each insurance policy required by this Agreement shall be endorsed to state that: (A)coverage shall not be suspended, voided, reduced or canceled except after thirty (30)days (10 days for nonpayment of premium) prior written notice by certified mail, return receipt requested, has been given to the City; and (B)any failure to comply with reporting or other provisions of the policies, including breaches of warranties, shall not affect coverage provided to the City, its directors, officials, officers, employees, agents, and volunteers.
Any failure to comply with reporting or other provisions of the policies including breaches of warranties shall not affect coverage provided to the City, its officials, officers, employees, agents and volunteers, or any other additional insureds.
3.2.11.4 Separation of Insureds; No Special Limitations; Waiver of Subrogation. All insurance required by this Section shall contain standard separation of insureds provisions. In addition, such insurance shall not contain any special limitations on the scope of protection afforded to the City, its directors, officials, officers, employees, agents, and volunteers.
All policies shall waive any right of subrogation of the insurer against the City, its officials, officers, employees, agents, and volunteers, or any other additional insureds, or shall specifically allow Contractor or others providing insurance evidence in compliance with these specifications to waive their right of recovery prior to a loss. Contractor hereby waives its own right of recovery against City, its officials, officers, employees, agents, and volunteers, or any other additional insureds, and shall require similar written express waivers and insurance clauses from each of its subcontractors.
3.2.11.5 Deductibles and Self-Insurance Retentions. Any deductibles or self-insured retentions must be declared to and approved by the City. Contractor shall guarantee that, at the option of the City, either: (1)the insurer shall reduce or eliminate such deductibles or self-insured retentions as respects the City, its directors, officials, officers, employees, agents, and volunteers; or (2) the Contractor shall procure a bond guaranteeing payment of losses and related investigation costs, claims, and administrative and defense expenses.
3.2.11.6 Subcontractor Insurance Requirements. Contractor shall not allow any subcontractors to commence work on any subcontract relating to the work under the Agreement until they have provided evidence satisfactory to the City that they have secured all insurance required under this Section. If requested by Contractor, the City may approve different - 7 -
scopes or minimum limits of insurance for particular subcontractors. The Contractor and the City shall be named as additional insureds on all subcontractors' policies of Commercial General Liability using ISO form 20 38, or coverage at least as broad.
3.2.11.7 Acceptability of Insurers. Insurance is to be placed with insurers with a current A.M. Best's rating no less than A:VIII, licensed to do business in California, and satisfactory to the City.
3.2.11.8 Verification of Coverage. Contractor shall furnish City with original certificates of insurance and endorsements effecting coverage required by this Agreement on forms satisfactory to the City. The certificates and endorsements for each insurance policy shall be signed by a person authorized by that insurer to bind coverage on its behalf and shall be on forms provided by the City if requested. All certificates and endorsements must be received and approved by the City before work commences. The City reserves the right to require complete, certified copies of all required insurance policies, at any time.
3.2.11.9 Reporting of Claims. Contractor shall report to the City, in addition to Contractor's insurer, any and all insurance claims submitted by Contractor in connection with the Services under this Agreement.
3.2.12 Safety. Contractor shall execute and maintain their work so as to avoid injury or damage to any person or property. In carrying out its Services, the Contractor shall at all times be in compliance with all applicable local, state, and federal laws, rules, and regulations, and shall exercise all necessary precautions for the safety of employees appropriate to the nature of the work and the conditions under which the work is to be performed. Safety precautions as applicable shall include, but shall not be limited to: (A) adequate life protection and lifesaving equipment and procedures; (B) instructions in accident prevention for all employees and subcontractors, such as safe walkways, scaffolds, fall protection ladders, bridges, gang planks, confined space procedures, trenching and shoring, equipment and other safety devices, equipment and wearing apparel as are necessary or lawfully required to prevent accidents or injuries; and (C) adequate facilities for the proper inspection and maintenance of all safety measures.
3.2.13 Bonds.
3.2.13.1 Performance Bond. If required by law or otherwise specifically requested by City in Exhibit"B" attached hereto and incorporated herein by reference, Contractor shall execute and provide to City concurrently with this Agreement a Performance Bond in the amount of the total, not-to-exceed compensation indicated in this Agreement, and in a form provided or approved by the City. If such bond is required, no payment will be made to Contractor until it has been received and approved by the City.
3.2.13.2 Payment Bond. If required by law or otherwise specifically requested by City in Exhibit "B" attached hereto and incorporated herein by reference, Contractor shall execute and provide to City concurrently with this Agreement a Payment Bond in the amount of the total, not-to-exceed compensation indicated in this Agreement, and in a form provided or approved by the City. If such bond is required, no payment will be made to Contractor until it has been received and approved by the City.
3.2.13.3 Bond Provisions. Should, in City's sole opinion, any bond become insufficient, or any surety be found to be unsatisfactory, Contractor shall renew or replace the affected bond within 10 days of receiving notice from City. In the event the surety or Contractor intends to reduce or cancel any required bond, at least thirty (30) days prior written notice shall be given to the City, and Contractor shall post acceptable replacement bonds at least ten (10) days prior to expiration of the original bonds. No further payments shall be deemed due or will be made under this Agreement until any replacement bonds required by this Section are -8-
accepted by the City. To the extent, if any, that the total compensation is increased in accordance with the Agreement, the Contractor shall, upon request of the City, cause the amount of the bonds to be increased accordingly and shall promptly deliver satisfactory evidence of such increase to the City. To the extent available, the bonds shall further provide that no change or alteration of the Agreement (including, without limitation, an increase in the total compensation, as referred to above), extensions of time, or modifications of the time, terms, or conditions of payment to the Contractor, will release the surety. If the Contractor fails to furnish any required bond, the City may terminate this Agreement for cause.
3.2.13.4 Surety Qualifications. Only bonds executed by an admitted surety insurer, as defined in Code of Civil Procedure Section 995.120, shall be accepted. The surety must be a California-admitted surety with a current A.M. Best's rating no less than A:VIII and satisfactory to the City. If a California-admitted surety insurer issuing bonds does not meet these requirements, the insurer will be considered qualified if it is in conformance with Section 995.660 of the California Code of Civil Procedure, and proof of such is provided to the City.
3.2.14 Accounting Records. Contractor shall maintain complete and accurate records with respect to all costs and expenses incurred under this Agreement. All such records shall be clearly identifiable. Contractor shall allow a representative of City during normal business hours to examine, audit, and make transcripts or copies of such records and any other documents created pursuant to this Agreement. Contractor shall allow inspection of all work, data, documents, proceedings, and activities related to the Agreement for a period of three (3) years from the date of final payment under this Agreement.
3.2.15 Work Site.
3.2.15.1 Inspection Of Site. Contractor shall visit sites where Services are to be performed and shall become acquainted with all conditions affecting the Services prior to commencing the Services. Contractor shall make such examinations as it deems necessary to determine the condition of the work sites, its accessibility to materials, workmen and equipment, and to determine Contractor's ability to protect existing surface and subsurface improvements. No claim for allowances—time or money—will be allowed as to such matters after commencement of the Services.
3.2.15.2 Field Measurements. Contractor shall make field measurements, verify field conditions, and shall carefully compare such field measurements and conditions and other information known to Contractor with the Contract Documents, including any plans, specifications, or scope of work before commencing Services. Errors, inconsistencies, or omissions discovered shall be reported to the City immediately and prior to performing any Services or altering the condition.
3.2.16 Loss and Damage. Contractor shall be responsible for all loss and damage which may arise out of the nature of the Services agreed to herein, or from the action of the elements, or from any unforeseen difficulties which may arise or be encountered in the prosecution of the Services until the same is fully completed and accepted by City.
3.2.17 Warranty. Contractor warrants all Services under the Contract (which for purposes of this Section shall be deemed to include unauthorized work which has not been removed and any non-conforming materials incorporated into the work) to be of good quality and free from any defective or faulty material and workmanship. Contractor agrees that for a period of one year(or the period of time specified elsewhere in the Contract or in any guarantee or warranty provided by any manufacturer or supplier of equipment or materials incorporated into the work, whichever is later) after the date of final acceptance, Contractor shall within ten (10) days after being notified in writing by the City of any defect in the Services or non-conformance of the Services to the Contract, commence and prosecute with due diligence all Services necessary to fulfill the -9-
terms of the warranty at its sole cost and expense. Contractor shall act sooner as requested by the City in response to an emergency. In addition, Contractor shall, at its sole cost and expense, repair and replace any portions of the work(or work of other contractors)damaged by its defective Services or which becomes damaged in the course of repairing or replacing defective work. For any work so corrected, Contractor's obligation hereunder to correct defective work shall be reinstated for an additional one-year period, commencing with the date of acceptance of such corrected work. Contractor shall perform such tests as the City may require verifying that any corrective actions, including, without limitation, redesign, repairs, and replacements comply with the requirements of the Contract. All costs associated with such corrective actions and testing, including the removal, replacement, and reinstitution of equipment and materials necessary to gain access, shall be the sole responsibility of the Contractor. All warranties and guarantees of subcontractors, suppliers, and manufacturers with respect to any portion of the work, whether express or implied, are deemed to be obtained by Contractor for the benefit of the City, regardless of whether or not such warranties and guarantees have been transferred or assigned to the City by separate agreement and Contractor agrees to enforce such warranties and guarantees, if necessary, on behalf of the City. In the event that Contractor fails to perform its obligations under this Section, or under any other warranty or guaranty under this Contract, to the reasonable satisfaction of the City, the City shall have the right to correct and replace any defective or non-conforming work and any work damaged by such work or the replacement or correction thereof at Contractor's sole expense. Contractor shall be obligated to fully reimburse the City for any expenses incurred hereunder upon demand.
3.3 Fees and Payments.
3.3.1 Compensation. Contractor shall receive compensation, including authorized reimbursements, for all Services rendered under this Agreement at the rates set forth in Exhibit "D" attached hereto and incorporated herein by reference. The total annual compensation shall vary, subject to City Council approval of the annual budget itemized for On- Call Concrete Pavement Repair Services, including routine services as well as Additional Extra Work, which may be authorized, as described below.
3.3.2 Payment of Compensation. Contractor shall submit to City a monthly itemized statement which indicates work completed and hours of Services rendered by Contractor.
The statement shall describe the amount of Services and supplies provided since the initial commencement date, or since the start of the subsequent billing periods, as appropriate, through the date of the statement. City shall, within 45 days of receiving such statement, review the statement and pay all approved charges thereon.
3.3.3 Deductions. City may deduct or withhold, as applicable, from each progress payment an amount necessary to protect City from loss because of: (1) stop payment notices as allowed by state law; (2) unsatisfactory prosecution of the Services by Contractor; (3) sums representing expenses, losses, or damages as determined by the City, incurred by the City for which Contractor is liable under the Agreement; and (4) any other sums which the City is entitled to recover from Contractor under the terms of the Agreement or pursuant to state law, including Section 1727 of the California Labor Code. The failure by the City to deduct any of these sums from a progress payment shall not constitute a waiver of the City's right to such sums.
3.3.4 Reimbursement for Expenses. Contractor shall not be reimbursed for any expenses unless authorized in writing by City.
3.3.5 Extra Work. At any time during the term of this Agreement, City may request that Contractor perform Extra Work. As used herein, "Extra Work" means any work which is determined by City to be necessary for the proper completion of the Project, but which the parties did not reasonably anticipate would be necessary at the execution of this Agreement. The City Manager may approve Extra Work up to ten percent (10%)of the amount of the Agreement or fifty thousand dollars ($50,000.00). Any Extra Work in excess of this amount shall be approved by the - 10-
City Council. Contractor shall not perform, nor be compensated for, Extra Work without written authorization from City's Representative.
3.3.6 Prevailing Wages. Contractor is aware of the requirements of California Labor Code Section 1720, et seq., and 1770, et seq., as well as California Code of Regulations, Title 8, Section 16000, et seq., ("Prevailing Wage Laws"), which require the payment of prevailing wage rates and the performance of other requirements on certain "public works" and "maintenance" projects. If the Services are being performed as part of an applicable "public works" or "maintenance" project, as defined by the Prevailing Wage Laws, and if the total compensation is $1,000 or more, Contractor agrees to fully comply with such Prevailing Wage Laws. City shall provide Contractor with a copy of the prevailing rates of per diem wages in effect at the commencement of this Contract. Contractor shall make copies of the prevailing rates of per diem wages for each craft, classification or type of worker needed to execute the Services available to interested parties upon request and shall post copies at Contractor's principal place of business and at the project site. Contractor shall defend, indemnify, and hold the City, its officials, officers, employees, and agents free and harmless from any claims, liabilities, costs, penalties, or interest arising out of any failure or alleged failure to comply with the Prevailing Wage Laws. It shall be mandatory upon the Contractor and all subcontractors to comply with all California Labor Code provisions, which include but are not limited to prevailing wages (Labor Code Sections 1771, 1774 and 1775), employment of apprentices (Labor Code Section 1777.5), certified payroll records (Labor Code Sections 1771.4 and 1776), hours of labor (Labor Code Sections 1813 and 1815) and debarment of contractors and subcontractors (Labor Code Section 1777.1). The requirement to submit certified payroll records directly to the Labor Commissioner under Labor Code section 1771.4 shall not apply to work performed on a public works project that is exempt pursuant to the small project exemption specified in Labor Code Section 1771.4.
3.3.7 Registration/DIR Compliance. If the Services are being performed as part of an applicable "public works" or"maintenance" project, and if the total compensation is $15,000 or more, then pursuant to Labor Code Sections 1725.5 and 1771.1, the Contractor and all subcontractors performing such Services must be registered with the Department of Industrial Relations. Contractor shall maintain registration for the duration of the Project and require the same of any subcontractors, as applicable. This Project may also be subject to compliance monitoring and enforcement by the Department of Industrial Relations. It shall be Contractor's sole responsibility to comply with all applicable registration and labor compliance requirements.
3.3.8 Notwithstanding the foregoing, the contractor registration requirements mandated by Labor Code Sections 1725.5 and 1771.1 shall not apply to work performed on a public works project that is exempt pursuant to the small project exemption specified in Labor Code Sections 1725.5 and 1771.1. Any stop orders issued by the Department of Industrial Relations against Contractor or any subcontractor that affect Contractor's performance of Services, including any delay, shall be Contractor's sole responsibility. Any delay arising out of or resulting from such stop orders shall be considered Contractor caused delay and shall not be compensable by the City. Contractor shall defend, indemnify, and hold the City, its officials, officers, employees, and agents free and harmless from any claim or liability arising out of stop orders issued by the Department of Industrial Relations against Contractor or any subcontractor.
3.4 Termination of Agreement.
3.4.1 Grounds for Termination. City may, by written notice to Contractor, terminate the whole or any part of this Agreement at any time and without cause by giving written notice to Contractor of such termination, and specifying the effective date thereof, at least seven (7) days before the effective date of such termination. Upon termination, Contractor shall be compensated only for those services which have been adequately rendered to City, and Contractor shall be entitled to no further compensation. Contractor may not terminate this Agreement except for cause.
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3.4.2 Effect of Termination. If this Agreement is terminated as provided herein, City may require Contractor to provide all finished or unfinished Documents and Data and other information of any kind prepared by Contractor in connection with the performance of Services under this Agreement. Contractor shall be required to provide such document and other information within fifteen (15) days of the request.
3.4.3 Additional Services. In the event this Agreement is terminated in whole or in part as provided herein, City may procure, upon such terms and in such manner as it may determine appropriate, services similar to those terminated.
3.5 General Provisions.
3.5.1 Delivery of Notices. All notices permitted or required under this Agreement shall be given to the respective parties at the following address, or at such other address as the respective parties may provide in writing for this purpose:
Contractor:
T.S.R. Construction & Inspection, Inc.
8264 Avenida Leon
Rancho Cucamonga, CA, 91730
City:
City of Upland
460 N. Euclid Avenue
Upland, CA 91786
Attn: City Manager
With Copy To:
City of Upland
460 N. Euclid Avenue
Upland, CA 91786
Attn: City Attorney
Such notice shall be deemed made when personally delivered or when mailed, forty-eight (48) hours after deposit in the U.S. Mail, first class postage prepaid and addressed to the party at its applicable address. Actual notice shall be deemed adequate notice on the date actual notice occurred, regardless of the method of service.
3.5.2 Indemnification.
3.5.2.1 Scope of Indemnity. To the fullest extent permitted by law, Contractor shall defend, indemnify and hold the City, its officials, employees, agents and volunteers free and harmless from any and all claims, demands, causes of action, suits, actions, proceedings, costs, expenses, liability, judgments, awards, decrees, settlements, loss, damage or injury of any kind, in law or equity, regardless of whether the allegations are false, fraudulent, or groundless, to property or persons, including wrongful death, (collectively, "Claims") in any manner arising out of, pertaining to, or incident to any alleged acts, errors or omissions, or willful misconduct of Contractor, its officials, officers, employees, subcontractors, consultants or agents in connection with the performance of the Contractor's Services, the Project or this Agreement, including without limitation the payment of all expert witness fees, attorneys' fees and other related costs and expenses. Notwithstanding the foregoing, to the extent required by Civil Code section 2782, Contractor's indemnity obligation shall not apply to liability for damages for death or bodily injury to persons, injury to property, or any other loss, damage or expense which is caused by the sole or active negligence or willful misconduct of the City or the City's agents, servants, or independent contractors who are directly responsible to the City. - 12-
3.5.2.2 Additional Indemnity Obligations. Contractor shall defend, with counsel of City's choosing and at Contractor's own cost, expense, and risk, any and all Claims covered by this indemnification section that may be brought or instituted against City or its officials, employees, agents, and volunteers. In addition, Contractor shall pay and satisfy any judgment, award or decree that may be rendered against City or its officials, employees, agents, and volunteers as part of any such claim, suit, action, or other proceeding. Contractor shall also reimburse City for the cost of any settlement paid by City or its officials, employees, agents, and volunteers as part of any such claim, suit, action, or other proceeding. Such reimbursement shall include payment for City's attorney's fees and costs, including expert witness fees. Contractor shall reimburse City and its officials, employees, agents, and volunteers, for any and all legal expenses and costs incurred by each of them in connection therewith or in enforcing the indemnity herein provided. Contractor's obligation to indemnify shall survive expiration or termination of this Agreement, and shall not be restricted to insurance proceeds, if any, received by the City, its officials, employees, agents, and volunteers.
3.5.3 Governing Law; Government Code Claim Compliance. This Agreement shall be governed by the laws of the State of California. Venue shall be in San Bernardino County, California. In addition to any and all contract requirements pertaining to notices of and requests for compensation or payment for extra work, disputed work, claims and/or changed conditions, Contractor must comply with the claim procedures set forth in Government Code sections 900 et seq. prior to filing any lawsuit against the City. Such Government Code claims, and any subsequent lawsuit based upon the Government Code claims shall be limited to those matters that remain unresolved after all procedures pertaining to extra work, disputed work, claims, and/or changed conditions have been followed by Contractor. If no such Government Code claim is submitted, or if any prerequisite contractual requirements are not otherwise satisfied as specified herein, Contractor shall be barred from bringing and maintaining a valid lawsuit against the City.
3.5.4 Time of Essence. Time is of the essence for each and every provision of this Agreement.
3.5.5 City's Right to Employ Other Contractors. City reserves right to employ other contractors in connection with this Project.
3.5.6 Successors and Assigns. This Agreement shall be binding on the successors and assigns of the parties.
3.5.7 Assignment or Transfer. Contractor shall not assign, hypothecate, or transfer, either directly or by operation of law, this Agreement, or any interest herein without the prior written consent of the City. Any attempt to do so shall be null and void, and any assignees, hypothecates or transferees shall acquire no right or interest by reason of such attempted assignment, hypothecation, or transfer.
3.5.8 Construction; References; Captions. Since the Parties or their agents have participated fully in the preparation of this Agreement, the language of this Agreement shall be construed simply, according to its fair meaning, and not strictly for or against any Party. Any term referencing time, days or period for performance shall be deemed calendar days and not workdays.
All references to Contractor include all personnel, employees, agents, and subcontractors of Contractor, except as otherwise specified in this Agreement. All references to City include its officials, officers, employees, agents, and volunteers except as otherwise specified in this Agreement. The captions of the various articles and paragraphs are for convenience and ease of reference only, and do not define, limit, augment, or describe the scope, content, or intent of this Agreement.
3.5.9 Amendment; Modification. No supplement, modification or amendment of this Agreement shall be binding unless executed in writing and signed by both Parties. - 13-
3.5.10 Waiver. No waiver of any default shall constitute a waiver of any other default or breach,whether of the same or other covenant or condition. No waiver, benefit, privilege, or service voluntarily given or performed by a Party shall give the other Party any contractual rights by custom, estoppel or otherwise.
3.5.11 No Third-Party Beneficiaries. Except to the extent expressly provided for in Section 3.5.7, there are no intended third-party beneficiaries of any right or obligation assumed by the Parties.
3.5.12 Invalidity; Severability. If any portion of this Agreement is declared invalid, illegal, or otherwise unenforceable by a court of competent jurisdiction, the remaining provisions shall continue in full force and effect.
3.5.13 Prohibited Interests. Contractor maintains and warrants that it has not employed nor retained any company or person, other than a bona fide employee working solely for Contractor, to solicit or secure this Agreement. Further, Contractor warrants that it has not paid, nor has it agreed to pay any company or person, other than a bona fide employee working solely for Contractor, any fee, commission, percentage, brokerage fee, gift or other consideration contingent upon or resulting from the award or making of this Agreement. Contractor further agrees to file, or shall cause its employees or subcontractors to file, a Statement of Economic Interest with the City's Filing Officer as required under state law in the performance of the Services.
For breach or violation of this warranty, City shall have the right to rescind this Agreement without liability. For the term of this Agreement, no member, officer, or employee of City, during the term of his or her service with City, shall have any direct interest in this Agreement, or obtain any present or anticipated material benefit arising therefrom.
3.5.14 Cooperation; Further Acts. The Parties shall fully cooperate with one another and shall take any additional acts or sign any additional documents as may be necessary, appropriate, or convenient to attain the purposes of this Agreement.
3.5.15 Authority to Enter Agreement. Contractor has all requisite power and authority to conduct its business and to execute, deliver, and perform the Agreement. Each Party warrants that the individuals who have signed this Agreement have the legal power, right, and authority to make this Agreement and bind each respective Party.
3.5.16 Counterparts. This Agreement may be signed in counterparts, each of which shall constitute an original.
3.5.17 Entire Agreement. This Agreement contains the entire Agreement of the parties with respect to the subject matter hereof, and supersedes all prior negotiations, understandings, or agreements. This Agreement may only be modified by a writing signed by both parties.
3.5.18 Fleet Compliance.
3.5.18.1 To the extent applicable, Contractor, shall comply, and shall ensure all subcontractors comply, with all requirements of the most current version of the California Air Resources Board ("CARB") including, without limitation, all applicable terms of Title 13, California Code of Regulations Division 3, Chapter 9 and all pending amendments ("Regulation"). A Fleet Compliance Certification Form is attached hereto as Exhibit "C" and incorporated herein by this reference.
3.5.18.2 Throughout Project, and for three (3) years thereafter, Contractor shall make available for inspection and copying any and all documents or information associated with Contractor's and subcontractors' fleet including, without limitation, the CRCs, fuel/refueling records, maintenance records, emissions records, and any other information the - 14-
Contractor is required to produce, keep, or maintain pursuant to the Regulation upon two (2) calendar days' notice from the City.
3.5.18.3 Contractor shall be solely liable for any and all costs associated with complying with the Regulation as well as for any and all penalties, fines, damages, or costs associated with any and all violations, or failures to comply with the Regulation. Contractor shall defend, indemnify, and hold harmless the City, its officials, officers, employees, and authorized volunteers free and harmless from any claims, liabilities, costs, penalties, or interest arising out of any failure or alleged failure to comply with the Regulation. [SIGNATURES ON FOLLOWING PAGE]
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SIGNATURE PAGE FOR
MAINTENANCE SERVICES AGREEMENT
BETWEEN THE CITY OF UPLAND
AND T.S.R. CONSTRUCTION & INSPECTION, INC.
IN WITNESS WHEREOF, the Parties hereto have executed this Agreement as of the date first written above.
CITY OF UPLAND T.S.R. CONSTRUCTION & INSPECTION, INC.
APPR• AEI B .:
By:
._ r ,;_- z " MICHAEL BLAY,
CITY A AGER
Its: President .
ATTESTED BY: Printed Name: Gabriel Zapirtan .
KERI JO NSO ,
City Clerk By:
Its: Secretary .
APPROVED AS TO FORM: -
' 6:- .. Printed Name: Gabriel Zapirtan .
Best Best& Krieger LLP
City Attorney
881123 .
Contractor's License Number
1000014389 .
DIR Registration Number
- 16-
EXHIBIT A
SCOPE OF SERVICES
The City of Upland has a need for on-call services for routine concrete sidewalk and curb&gutter repair and is soliciting proposals from qualified paving contractors for"On-call Concrete Pavement Repairs".
The city is divided into sixteen (16) grids, with four (4) grids within each council district. City staff will develop the list of locations in need of repair within a minimum of four(4)grids and a maximum of eight (8) grids on a semi-annual basis and will share these locations with the contractor. The list of locations shall include all four council districts however every effort will be made to keep the work in each district within a reasonable central location. The city shall share this list with the contractor and the work will then be scheduled by mutual agreement and be completed with the time agreed upon for each specific item of work. Failure to promptly respond or to complete the work in a timely manner shall give cause for termination of this agreement at the City's sole discretion.
EXHIBIT B
BONDS
A Payment Bond and a Performance Bond, each in the amount of Five Hundred Thousand Dollars, are required and shall be renewed annually.
EXHIBIT C
FLEET COMPLIANCE CERTIFICATION
Bidder hereby acknowledges that they have reviewed the California Air Resources Board's policies, rules and regulations and are familiar with the requirements of Title 13, California Code of Regulations, Division 3, Chapter 9, effective on January 1, 2024 (the "Regulation"). Bidder hereby certifies, subject to penalty for perjury,that the option checked below relating to the Bidder's fleet,and/or that of their subcontractor(s) ("Fleet") is true and correct:
X The Fleet is subject to the requirements of the Regulation, and the appropriate Certificate(s) of Reported Compliance have been attached hereto.
The Fleet is exempt from the Regulation under section 2449.1(f)(2), and a signed description of the subject vehicles, and reasoning for exemption has been attached hereto. ❑ Bidder and/or their subcontractor is unable to procure R99 or R100 renewable diesel fuel as defined in the Regulation pursuant to section 2449.1(f)(3). Bidder shall keep detailed records describing the normal refueling methods,their attempts to procure renewable diesel fuel and proof that shows they were not able to procure renewable diesel (i.e. third-party correspondence or vendor bids).
A The Fleet is exempt from the requirements of the Regulation pursuant to section 2449(i)(4) because this Project has been deemed an Emergency, as defined under section 2449(c)(18).
Bidder shall only operate the exempted vehicles in the emergency situation and records of the exempted vehicles must be maintained, pursuant to section 2449(i)(4).
The Fleet does not fall under the Regulation or are otherwise exempted, and a detailed reasoning is attached hereto.
Name of Bidder: T.S.R. CONSTRUCTION & INSPECTION, INC.
Signature: COA
Name: GABRIEL ZAPIRTAN
Title: PRESIDENT
Date: AUGUST 12, 2024
EXHIBIT D
COMPENSATION
Quantity Ranges — Remove and Reconstruct 8" PCC Curb only, Type A-1.
Cost per linear foot for removal and replacement of 8-inch curb only as requested.
Linear Ft. per Proposal
Work Location Unit Price/LF
10-100 $80
101-250 $70
251-500 $60
501-1,000 $60
Quantity Ranges — Remove and Reconstruct 8" Curb with 12" Gutter.
Cost per linear foot for removal and replacement of curb and gutter with a curb face of 8"-10" and a gutter width of 12" as requested.
Linear Ft. per Proposal
Work Location Unit Price/LF
10-100 $90
101-500 $90
501-1,000 $80
1,001-2,500 $80
Quantity Ranges— Remove and Reconstruct 8" Curb with 18" Gutter.
Cost per linear foot for removal and replacement of curb and gutter with a curb face of 8"-10" and a gutter width of 18" as requested.
Linear Ft. per Proposal
Work Location Unit Price/LF
10-100 $90
101-500 $90
501-1,000 $90
1,001-2,500 $80
Quantity Ranges — Remove and Reconstruct 8" Curb with 24" Gutter.
Cost per linear foot for removal and replacement of curb and gutter with a curb face of 8"-10" and a gutter width of 24" as requested.
Linear Ft. per Proposal
Work Location Unit Price/LF
10-100 $90
101-500 $90
501-1,000 $90
1,001-2,500 $90
Quantity Ranges — Remove and Reconstruct existing 8" Rock Curb only.
Cost per linear foot for removal and replacement of 8-inch rock curb only as requested.
Linear Ft. per Proposal
Work Location Unit Price/LF
10-100 $130
101-250 $130
251-500 $120
Quantity Ranges — Remove and Reconstruct existing 8" Rock Curb and Gutter.
Cost per linear foot for removal and replacement of rock curb and gutter with a curb face of 8"-12" and a gutter width of 18" as requested.
Linear Ft. per Proposal
Work Location Unit Price/LF
10-100 $140
101-250 $140
251-500 $140
Quantity Ranges — Remove and Replace 4" Thick Sidewalk.
Cost per square foot for removal and replacement of 4-inch-thick PCC sidewalk as requested.
Square Ft. per Proposal
Work Location Unit Price/S.F.
10-100 $17
101-500 $16
501-1,000 $15
1,001-2,500 $15
Quantity Ranges — Remove and Replace 6" Thick PCC Sidewalk.
Cost per square foot for removal and replacement of 6-inch-thick PCC sidewalk as requested.
Square Ft. per Proposal
Work Location Unit Price/S.F.
10-100 $22
101-500 $20
501-1,000 $18
1,001-2,500 $18
Quantity Ranges — Remove and Replace existing 6" Thick PCC Residential Driveway Approach.
Cost per square foot for removal and replacement of 6-inch-thick PCC residential driveway approach as requested.
Square Ft. per Proposal
Work Location Unit Price/SF
25-100 $25
101-500 $25
501-1,000 $20
Quantity Ranges — Remove and Replace existing 8" Thick PCC Spandrel / Cross Gutter.
Cost per sq. ft. for removal and replacement of 8-inch-thick PCC Spandrel / Cross Gutter.
Square Ft. per Proposal
Work Location Unit Price/SF
25-100 $80
101-500 $75
501-1,000 $70
Quantity Ranges — Remove and Replace existing Handicap Access Ramp.
Cost per square foot for removal and replacement of a 4-inch-thick handicap access ramp including truncated domes and curb replacement as requested.
Square Ft. per Proposal
Work Location Unit Price/SF
50-250 $50
251-750 $45
751-1,500 $40
Quantity Ranges — Remove and Replace existing 4-inch Thick AC Pavement.
Cost per square foot for saw-cut, removal, and replacement of 4-inch-thick AC Pavement.
Square Ft. per Proposal
Work Location Unit Price/SF
10-100 $15
101- 500 $13
501-2,000 $10
Quantity Ranges — Remove and Replace existing 6-inch Thick AC Pavement.
Cost per square foot for saw-cut, removal, and replacement of 4-inch-thick AC Pavement.
Square Ft. per Proposal
Work Location Unit Price/SF
10 - 100 $17
101 - 500 $15
501 — 1,000 $13
Quantity Ranges — Parkway Restoration
Cost per sq. ft. for parkway clearing, grading, installation of topsoil and restoration of irrigation.
Square Ft. per Proposal
Work Location Unit Price/SF
25 -250 $30
251 - 700 $25
,y'S4or UN
`tCALIFORNIA LEVINE ACT DISCLOSURE STATEMENT
Ogt�� 4Q"
California Government Code Section 84308, commonly referred to as the "Levine Act," prohibits City Officers from participating in any action concerning a license, permit,other entitlement for use,franchise, or contract(collectively"license, permit,or contract") if they receive political contribution(s)from a party, or its agent(s), totaling more than $500 within the twelve (12) months before the proceeding, while a proceeding is pending, and for twelve (12) months following the date of a final decision in a proceeding.
The Levine Act also requires a member of the Upland City Council who has received such a contribution to disclose the contribution on the record of the proceeding and recuse themselves before the proceeding unless the violation has been properly cured.
Current Upland City Council Members are listed at:
https://www.uplandca.gov/city-council-treasurer
Parties and their Agents are responsible for accessing the link to review the names and disclosing their applicable contributions to City Officers on the record of a proceeding.
As a party to a proceeding,you are also required to provide information below about contributions made by you, your agents on behalf of you or your organization, your organization subject to the proceeding with the City, and any organization you direct or control pursuant to the aggregation rules at FPPC Reg. § 18438.5, except for uncompensated officers of a nonprofit organization. This form is to be submitted to the City of Upland and is a public record. If you have any questions about this form, please contact your City representative for assistance.
1. Have you or your company,or any agent/board member on behalf of you or your company/entity, made any political contributions of more than $500 to any Upland City Council Member in the 12 months preceding the date of the submission of your proposal or application,or the anticipated date of any Council action?
YES If yes, please identify the Council Member(s): _ 'NO
2. Do you or your company/entity, or any agency on behalf of you or your company/entity, anticipate or plan to make any political contribution of more than $500 to any Upland City Council Member in the 12 months following any Council action related to your proposal or application? YES If yes, please identify the Council Member(s):
_ENO
Answering yes to either of the two questions above does not preclude the Upland City Council from awarding a contract or approving an application or any subsequent action. It does, however, preclude the identified Council Member(s)from participating in any actions related to your proposal or application. 6/11/2026
Date Signat e of authorized individual
Tsr Construction/Gabriel Zapirtan
Company/Applicant Name
(Levine Act definitions on reverse side)
LEVINE ACT DISCLOSURE STATEMENT DEFINITIONS
Term Definition Law
A proceeding to grant, deny, revoke, restrict, or modify a license, permit or other entitlement for use, that
does not solely involve purely ministerial decisions
and is:
Covered (1)Applied for by the party; FPPC Reg 18438.2(a) "proceedings" (2) Formally or informally requested by the party; or (3)A contract between the agency and the party or a
franchisee granted by the agency to the party, other
than a contract that is competitively bid, a labor
contract, or a personal employment contract.
Any person who files an application for, or is the
Party subject of, a proceeding involving a license, permit, or Gov. Code 84308(a)(1) other entitlement for use.
Any person who is not a party but who actively
supports or opposes a particular decision in a
proceeding involving a license, permit, or other
entitlement for use and who has a financial interest in Gov. Code 84308(a)(2) Participant the decision.A person actively supports or opposes a FPPC Reg 18438.4 particular decision in a proceeding if that person
lobbies in person the officers or employees of the
agency, testifies in person before the agency, or
otherwise acts to influence officers of the agency.
A person who represents a party or participant for
compensation and appears before or otherwise
Agent communicates with the governmental agency for the FPPC Reg 18438.3 purpose of influencing the pending proceeding. See
FPPC Reg 18438.3 for exceptions for certain
consultants.
A contract required by law to be awarded to the lowest
responsible bidder with a responsive bid, or, if the FPPC Reg Competitively Bid successful bidder refuses or fails to execute the 18438.2(a)(3)(A) contract, to the next lowest bidder with a responsive
bid.
A contract or agreement reached through collective
bargaining or with a representative group regarding
Labor Contract the salary, benefits, or terms and conditions under an FPPC Reg employment or retirement policy for employees or 18438.2(a)(3)(B) retirees, including a project labor agreement entered
under Public Contract Code Section 2500.
Personal A contract for employment, including the terms and Employment conditions of employment, between the agency and FPPC Reg Contract an agency employee.A contract with an independent 18438.2(a)(3)(C)-(D) contractor is NOT a personal employment contract.
,.., Up`q� CITYUPLAND
. ` "The City of Gracious Living"
ltiriiVO
DATE: June 22,2026
TO: MAYOR AND CITY COUNCIL
FROM: MICHAEL BLAY,CITY MANAGER
PREPARED BY:DAMIEN R.ARRULA,ASSISTANT CITY MANAGER
JESSICA GORDON,DEPUTY DIRECTOR OF PUBLIC WORKS
RICHARD SMIDERLE,OPERATIONS MANAGER
JESSICA GANDARA,RECREATION&COMMUNITY SERVICES MANAGER
MEGHAN MEADE,RECREATION&COMMUNITY SERVICES SUPERVISOR
SUBJECT: CONSIDER APPROVAL OF A CHANGE ORDER FOR CABRILLO SAFETY NETTING
PROJECT AND ADDITIONAL APPROPRIATION OF QUIMBY FUNDS FOR THE PROJECT RECOMMENDED ACTION:
It is recommended that the City Council approve a Change Order with West Coast Netting in the amount of$35,706.25 for an agreement total of$90,206.25,authorize an additional appropriation of$37,214.52 in Quimby Fee funds for a revised project total of$97,214.52;and authorize the City Manager to execute the change order.
GOAL STATEMENT
The proposed action supports the City's goal of maintaining and improving City sports field safety infrastructure.
BACKGROUND
On December 8, 2025, the City Council entered into a construction agreement with West Coast Netting for the installation of safety netting at Cabrillo Park in the amount of$54,500. The project's goals were to mitigate soccer ball travel beyond the field boundaries and to enhance both safety and the overall functionality of the sports facility.
ISSUES AND ANALYSIS
During initial site investigation and excavation activities,the contractor encountered unforeseen subsurface conditions consisting of highly rocky and compacted soil that are consistent with Upland's topography,however,were not fully anticipated at the time the project was bid.These conditions exceed the capabilities of standard drilling equipment and require the use of specialized heavy-duty drilling equipment to properly complete the required installations.
The proposed Change Order is for$35,706.25 and results in a contract total of$90,206.25. While this is a notable increase over the original construction agreement,the revised total project cost remains consistent with original pricing —inclusive of vendor-provided optional services—received from other qualified contractors, demonstrating that the cost is reasonable and reflective of current market conditions for the required work. • West Coast Netting-$90,206.25(new,revised total)
• Coastal Netting-$98,280
• Grand Slam Safety-Estimated Range of Work$107,000-$111,000 • Judge Netting-$88,374
During the initial excavation, it was discovered that a main line for the irrigation system is located directly beneath the project area footings.Due to the age of the irrigation system,the location of this line was unforeseen.Additionally, the City does not have as-built drawings or mapping identifying the alignment of the park's main irrigation infrastructure and no current City staff were involved with the installation of the original system. To avoid conflicts with the proposed improvements and maintain uninterrupted irrigation service, the irrigation line will need to be relocated and re-routed.The scope of irrigation work,quoted by Mariposa Landscapes,Inc. at$7,008.27,is included with the recommended appropriation of funds for the updated project scope.
ENVIRONMENTAL DETERMINATION
The proposed action is not subject to the California Environmental Quality Act(CEQA). Section 15378 of the CEQA Guidelines defines a project subject to CEQA.The proposed action is not included within the definition of a"project" and thus is exempt.
FISCAL IMPACTS
With the approved Change Order, the revised project cost will total $97,214.52. There are available funds in the Cabrillo Park neighborhood in the Quimby Fee Fund and the budget amendment will appropriate $37,714.25 to the Quimby Cabrillo Park Soccer Field Protective Netting project Account No.4217500-5540-83011.
ALTERNATIVES
Provide alternative direction to staff.
CEQA:Not a Project.
Arizona Office WEST COAST NETTING
5075 Flightline Drive
THE NET HOUSE
Kingman,AZ 86401 HOMECOURT
CONTRACT CHANGE ORDER
FROM: West Coast Netting
5075 Flightline Dr No. 0144244.(I)
Kingman Az,86401
TO: City Of Upland
460 N Euclid Ave DATE 6.2.2026
Upland,CA 91786 JOB NAME City of Upland Cabrillo Park Soccer Attn:Meghan Meade CONTRACT JOB NO. 0144244
PREPARED BY Blaine Smith
WORK TO BEGIN BY 6.3.2026 WORK TO BE COMPLETED BY 6.12.2026 Scope creep due to unstable soils/hard rock drilling,specialized equipment(Driller)additional concrete,and additional labor&time necessary to complete the work.
Hotel rooms $1,750.00
Per Diem $700.00
40'Manlifl $2,500.00
10 K Reach liorklifl $2,000.00
Driller $11 250.00
Skid Steer $1,000.00
Regular Labor $7,000.00
Concrete(per yard) $1600.00
Concrete Pump(per hr) $765.00
OP $7,141 25
Total $35,706_25
Taxes not included
Changes Approved
BY: PREVIOUS CONTRACT AMOUNT $54,500.00 AMOUNT OF THIS ORDER $35,706.25
BY: TOTAL CONTRACT AND EXTRAS $90,206.25 Blaine Smith
By:
Vice President Construction
MAR1POSA
LANDSCAPES INC
PROPOSAL
May 10, 2026
Brett Lance-Operations Supervisor/City Arborist
City of Upland Public Works
1370 N. Benson Ave.
Upland, CA 91786
Office (909) 291-2952
Re-route Mainline at Cabrillo Park
Description This proposal provides all labor, materials, and equipment to trench and re-route the mainline just south of the newly installed posts.This project has been discussed with Brett Lance.
• Trench approximately 135 linear feet to move the 3" mainline around the newly installed posts.
Price Total price for above-described work $7,008.27 Seven Thousand Eight Dollars and 27/100
Terms: Total due upon completion.
Exclusions: Any unforeseen underground obstacles, and anything not mentioned.
Time Project start date is currently 5 working days after acceptance.
Limits Time limit for the acceptance of this proposal is 30 calendar days from the above date.
Re'pectfully submitted,
67/744,,4".._
Signature and Date
Steve Harris—Account Manager
[email protected]
626- 253-9661 cell (626) 960-8477 fax
1-800-794-9458 • www.mariposa-ca.com • CSLB #592268
We create and Maintain Beautiful Landscapes Where People Live, Work, and Play
44 o ..rfT E
CITY OF UPLAND
BUDGET AMENDMENT
Date: 6/22/2026 Fiscal Year: FY25-26
Requested by: Tonya Lei Amount: $ 42,715.00 Dept/Div: Finance Description: 6/22/26 Council Meeting Cabrillo Park Soccer Net
EXPENDITURES
Proposed
Account Number Dept/Account Description Adopted Budget Current Budget Amendment Amended Budget 4217500-5540-83011 Cabrillo Park Soccer Field Net 90,000.00 60,000.00 42,715.00 102,715.00 Total I 90,000.00 60,000.00 42,715.00 102,715.00
REVENUES
Proposed
Account Number Account Description Adopted Budget Current Budget Amendment Amended Budget Total -
Fiscal Impact 42,715.00
REASON/JUSTIFICATION (Please be specific)
❑ Reallocation of maintenance &operations to cover actual expense/encumbrances ❑ Estimated revenue adjustment for donations/other sources of revenue E Appropriation line item adjustment to match funds received by grant, donations of other sources (deposit) ❑ Emergency purpose:
Description of Expense:
❑ Other- Explain: Appropriation per council approval This request is directly related to:
❑ Purchase Requisition No. Vendor:
❑ Council Meeting action: 6/22/2026 (Attach copy of minutes) Increase Purchase Order# OR Requisition #
APPROVALS
Dept Head Approval: Date:
Finance Officer: Date:
Funds Available? ❑Yes ❑No
❑Approved ❑ Denied
City Manager*: Date:
*Not required if approved by City Council
Comment:
Finance Division Only:
BA#: 12266076 Help Ticket#: N/A
Journal #: 93 Initial/Date:
Revised:3/2024 Page 420 toleff 33 AM
CITY OF UPLAND
CONSTRUCTION CONTRACT
Cabrillo Park Safety Netting Project
1. PARTIES AND DATE.
This Contract is made and entered into this 8th day of December, 2025 by and between the City of Upland, a general law city and municipal corporation organized under the laws of the State of California with its principal place of business at 460 N. Euclid Avenue Upland, CA 91786 ("City") and West Coast Netting, an Arizona corporation with its principal place of business at 5075 Flightline Drive, Kingman, Arizona ("Contractor"). City and Contractor are sometimes individually referred to as "Party" and collectively as "Parties" in this Contract.
2. RECITALS.
2.1 City. City is a public agency organized under the laws of the State of California, with power to contract for services necessary to achieve its purpose.
2.2 Contractor. Contractor desires to perform and assume responsibility for the provision of certain construction services required by the City on the terms and conditions set forth in this Contract. Contractor represents that it is duly licensed and experienced in providing the installation and materials for two soccer backstop net related construction services to public clients, that it and its employees or subcontractors have all necessary licenses and permits to perform the services in the State of California, and that it is familiar with the plans of City. The following license classifications are required for this Project: Contractors State License Board.
2.3 Project. City desires to engage Contractor to render such services for the Cabrillo Park Safety Netting Project ("Project") as set forth in this Contract.
2.4 Project Documents & Certifications. Contractor has obtained, and delivers concurrently herewith, performance and payment bonds after the contract has been approved.
3. TERMS
3.1 Incorporation of Documents. This Contract includes and hereby incorporates in full by reference the following documents, including all exhibits, drawings, specifications and documents therein, and attachments and addenda thereto:
• Scope of Services (Exhibit "A")
• Certification (Exhibit "B")
• Public Works Contractor Registration Certification (Exhibit "C") • Contractor's Bid (Exhibit "D")
3.11 —Precedence-To the extent there is ac-onflict between anypartiw of this Contract, the order of precedence shall be as follows: change orders, special conditions, technical specifications, plans/construction drawings, general contract terms, scope of work, standard plans, advertisements for bid/proposals, bids/proposals or other documents submitted by Contractor.
Exhibit A-1
3.2 Contractor's Basic Obligation; Scope of Work. Contractor promises and agrees, at its own cost and expense, to furnish to the City all labor, materials, tools, equipment, services, and incidental and customary work necessary to fully and adequately complete the Project, including all structures and facilities necessary for the Project or described in the Contract (hereinafter sometimes referred to as the"Work"), for a Total Contract Price as specified pursuant to this Contract. All Work shall be subject to, and performed in accordance with the above- mentioned documents, as well as the exhibits attached hereto and incorporated herein by reference. The plans and specifications for the Work are further described in Exhibit"B"attached hereto and incorporated herein by this reference. Special Conditions, if any, relating to the Work are described in Exhibit"C" attached hereto and incorporated herein by this reference.
3.2.1 Change in Scope of Work. Any change in the scope of the Work, method of performance, nature of materials or price thereof, or any other matter materially affecting the performance or nature of the Work shall not be paid for or accepted unless such change, addition or deletion is approved in advance and in writing by a valid change order executed by the City.
3.2.1.1 Change Orders. Changes to the Contract Time (as defined in Section 3.3) or Total Contract Price shall be in the form of a written Change Order, either signed by both parties or issued unilaterally by the City. No adjustment shall be made to the Contract Time unless the delay impacts the critical path to completion and the delay was not caused in whole or in part by the Contractor. Failure to timely request a Change Order shall constitute a waiver of any right to adjust the Contract Time or the Total Contract Price. All requests for Change Orders shall be accompanied by detailed supporting documentation, including but not limited to payroll records, invoices, schedules, and any other documentation requested by the City for the purpose of determining the additional costs or the impact of any delay. If the change involves Work bid at a unit price, then the Total Contract Price shall be increased at the unit price. If there is no unit price, then the Total Contract Price shall be adjusted to account for costs actually incurred plus an allowed mark-up of fifteen percent(15%),which shall constitute the entire amount of profit, mark-ups, field or home office overhead costs, including personnel, equipment or office space, any materials, or any costs of equipment idle time for such work. Regardless of ownership, equipment rates shall not exceed the listed prevailing rates at local equipment rental agencies, or distributors, at the time the work is performed. Nothing herein shall prevent the Parties from agreeing to a lump sum cost.
(A) Changes Ordered By City. City may at any time issue a written directive ordering additions, deletions, or changes to the Work. Contractor shall proceed with the work in accordance with the directive. To the extent the directive results in extra work or requires additional Contract Time, Contractor shall request a Change Order within seven (7)days of receiving the Work Directive. If any costs are not capable of being determined within seven (7) days, then Contractor shall request a Change Order within seven (7) days of when the costs are capable of being determined. (B) Changes Requested By Contractor. With respect to any matter that may involve or require an adjustment to the Contract Time or the Contract Price, Contractor shall provide written notice of the underlying facts and cireumsta•nees-that gave rise-to-the-potential-change-within-seven-(-7-)-days or prior to the alteration of conditions, whichever is earlier. Failure to give notice shall constitute a waiver of Contractor's right to a change order. If any costs are not capable of being determined within seven (7) days, then Contractor shall request a Change Order within seven (7) days of when the costs are capable of being determined.
2
3.2.2 Substitutions/"Or Equal". Pursuant to Public Contract Code Section 3400(b), the City may make a finding that designates certain products, things, or services by specific brand or trade name. Unless specifically designated in this Contract, whenever any material, process, or article is indicated or specified by grade, patent, or proprietary name or by name of manufacturer, such Specifications shall be deemed to be used for the purpose of facilitating the description of the material, process or article desired and shall be deemed to be _ followed by the words "or equal."
Contractor may, unless otherwise stated, offer for substitution any material, process or article which shall be substantially equal or better in every respect to that so indicated or specified in this Contract. However, the City may have adopted certain uniform standards for certain materials, processes and articles. Contractor shall submit requests, together with substantiating data, for substitution of any"or equal"material, process or article no later than thirty-five(35) days after award of the Contract. To facilitate the construction schedule and sequencing, some requests may need to be submitted before thirty-five(35)days after award of Contract. Provisions regarding submission of "or equal" requests shall not in any way authorize an extension of time for performance of this Contract. If a proposed "or equal" substitution request is rejected, Contractor shall be responsible for providing the specified material, process or article. The burden of proof as to the equality of any material, process or article shall rest with Contractor.
The City has the complete and sole discretion to determine if a material, process or article is an "or equal" material, process or article that may be substituted. Data required to substantiate requests for substitutions of an "or equal" material, process or article data shall include a signed affidavit from Contractor stating that, and describing how, the substituted "or equal" material, process or article is equivalent to that specified in every way except as listed on the affidavit.
Substantiating data shall include any and all illustrations, specifications, and other relevant data including catalog information which describes the requested substituted "or equal" material, process or article, and substantiates that it is an "or equal"to the material, process or article. The substantiating data must also include information regarding the durability and lifecycle cost of the requested substituted "or equal" material, process or article. Failure to submit all the required substantiating data, including the signed affidavit, to the City in a timely fashion will result in the rejection of the proposed substitution.
Contractor shall bear all of the City's costs associated with the review of substitution requests. Contractor shall be responsible for all costs related to a substituted "or equal" material, process or article. Contractor is directed to the Special Conditions (if any)to review any findings made pursuant to Public Contract Code section 3400.
3.3 Period of Performance and Liquidated Damages.
3.3.1 Contractor shall perform and complete all Work under this Contract within 60 days, beginning the effective date of the Notice to Proceed("Contract Time"). Contractor shall perform its Work in strict accordance with any completion schedule, construction schedule or project milestones developed by the City. Such schedules or milestones may be included as part of Exhibits "A" or"B" attached hereto, or may be provided separately in writing to Contractor.
Contractor agrees that if such Work is not completed within the aforementioned Contract Time and/or pursuant to any such completion schedule, construction schedule or project milestones -developed-pursuant to provisions of-the Contraet, it-is understood,, acknowledged-and-agreed-that the City will suffer damage. Pursuant to Government Code Section 53069.85, Contractor shall pay to the City as fixed and liquidated damages the sum of $ 250 per day for each and every calendar day of delay beyond the Contract Time or beyond any completion schedule, construction schedule or Project milestones established pursuant to the Contract. 3
3.3.2 If Contractor is delayed in the performance or progress of the Work by a Force Majeure Event (as defined herein), then the Contractor shall be entitled to a time extension, as provided herein, when the Work stopped is on the critical path and shall not be charged liquidated damages. Such a non-compensable adjustment shall be Contractor's sole and exclusive remedy for such delays and the Contractor will not receive an adjustment to the Total Contract Price or any other compensation. Contractor must submit a timely request in accordance with—the requirements of the Contract.
3.3.3 A Force Majeure Event shall mean an event that materially affects a party's performance and is one or more of the following: (1)Acts of God or other natural disasters occurring at the project site; (2) terrorism or other acts of a public enemy; (3) orders of governmental authorities (including, without limitation, unreasonable and unforeseeable delay in the issuance of permits or approvals by governmental authorities that are required for the work); (4) pandemics, epidemics or quarantine restrictions; and (5) strikes and other organized labor action occurring at the project site and the effects thereof on the work, only to the extent such strikes and other organized labor action are beyond the control of Contractor and its subcontractors, of every tier, and to the extent the effects thereof cannot be avoided by use of replacement workers. For purposes of this section, "orders of governmental authorities," includes ordinances, emergency proclamations and orders, rules to protect the public health, welfare and safety, and other actions of the City in its capacity as a municipal authority.
3.4 Standard of Performance; Performance of Employees. Contractor shall perform all Work under this Contract in a skillful and workmanlike manner, and consistent with the standards generally recognized as being employed by professionals in the same discipline in the State of California. Contractor represents and maintains that it is skilled in the professional calling necessary to perform the Work. Contractor warrants that all employees and subcontractors shall have sufficient skill and experience to perform the Work assigned to them. Finally, Contractor represents that it, its employees and subcontractors have all licenses, permits, qualifications and approvals of whatever nature that are legally required to perform the Work, including a City Business License, and that such licenses and approvals shall be maintained throughout the term of this Contract. As provided for in the indemnification provisions of this Contract, Contractor shall perform, at its own cost and expense and without reimbursement from the City, any work necessary to correct errors or omissions which are caused by Contractor's failure to comply with the standard of care provided for herein. Any employee who is determined by the City to be uncooperative, incompetent, a threat to the safety of persons or the Work, or any employee who fails or refuses to perform the Work in a manner acceptable to the City, shall be promptly removed from the Project by Contractor and shall not be re-employed on the Work.
3.5 Control and Payment of Subordinates; Contractual Relationship. City retains Contractor on an independent contractor basis and Contractor is not an employee of City. Any additional personnel performing the work governed by this Contract on behalf of Contractor shall at all times be under Contractor's exclusive direction and control. Contractor shall pay all wages, salaries, and other amounts due such personnel in connection with their performance under this Contract and as required by law. Contractor shall be responsible for all reports and obligations respecting such additional personnel, including, but not limited to: social security taxes, income tax withholding, unemployment insurance, and workers' compensation insurance
3.5-1 PER-S.Eligibility-Indemnification--In-the-event that-Contractor-or-any ------------ employee, agent, or subcontractor of Contractor providing services under this Agreement claims or is determined by a court of competent jurisdiction or the California Public Employees Retirement System (PERS) to be eligible for enrollment in PERS as an employee of the City, Contractor shall indemnify, defend, and hold harmless City for the payment of any employee and/or employer contributions for PERS benefits on behalf of Contractor or its employees, agents, 4
or subcontractors, as well as for the payment of any penalties and interest on such contributions, which would otherwise be the responsibility of City.
Notwithstanding any other agency, state or federal policy, rule, regulation, law or ordinance to the contrary, Contractor and any of its employees, agents, and subcontractors providing service under this Agreement shall not qualify for or become entitled to, and hereby agree to waive any claims to, any compensation, benefit, or any incident of employment by City, including but not limited to eligibility to enroll in PERS as an employee of City and entitlement to any contribution to be paid by City for employer contribution and/or employee contributions for PERS benefits.
3.6 City's Basic Obligation. City agrees to engage and does hereby engage Contractor as an independent contractor to furnish all materials and to perform all Work according to the terms and conditions herein contained for the sum set forth above. Except as otherwise provided in the Contract, the City shall pay to Contractor, as full consideration for the satisfactory performance by Contractor of the services and obligations required by this Contract, the below- referenced compensation in accordance with compensation provisions set forth in the Contract.
3.7 Compensation and Payment.
3.7.1 Amount of Compensation. As consideration for performance of the Work required herein, City agrees to pay Contractor the Total Contract Price of fifty-four thousand five hundred Dollars ($54,500.00) ("Total Contract Price") provided that such amount shall be subject to adjustment pursuant to the applicable terms of this Contract or written change orders approved and signed in advance by the City. The City Manager may approve Additional Work up to ten percent (10%) of the amount of the Agreement. in no event shall the total sum of the agreement (Total Contract Price and Additional Work) exceed fifty nine thousand, nine hundred and fifty dollars ($59,950). Any additional work in excess of this amount shall be approved by the City Council.
3.7.2 Payment of Compensation. If the Work is scheduled for completion in thirty (30) or less calendar days, City will arrange for payment of the Total Contract Price upon completion and approval by City of the Work. if the Work is scheduled for completion in more than thirty (30) calendar days, City will pay Contractor on a monthly basis as provided for herein.
On or before the fifth (5th) day of each month, Contractor shall submit to the City an itemized application for payment in the format supplied by the City indicating the amount of Work completed since commencement of the Work or since the last progress payment. These applications shall be supported by evidence which is required by this Contract and such other documentation as the City may require. The Contractor shall certify that the Work for which payment is requested has been done and that the materials listed are stored where indicated. Contractor may be required to furnish a detailed schedule of values upon request of the City and in such detail and form as the City shall request, showing the quantities, unit prices, overhead, profit, and all other expenses involved in order to provide a basis for determining the amount of progress payments.
3.7.3 Prompt Payment. City shall review and pay all progress payment requests in accordance with the provisions set forth in Section 20104.50 of the California Public Contract CodeHowever,—no--pr-og•r-ess-payments-will-be-made-for-Wor-k-not completed in accordance with this Contract. Contractor shall comply with all applicable laws, rules and regulations relating to the proper payment of its employees, subcontractors, suppliers or others.
3.7.4 Contract Retentions. From each approved progress estimate, five percent (5%) will be deducted and retained by the City, and the remainder will be paid to 5
Contractor. All Contract retention shall be released and paid to Contractor and subcontractors pursuant to California Public Contract Code Section 7107.
3.7.5 Other Retentions. In addition to Contract retentions, the City may deduct from each progress payment an amount necessary to protect City from loss because of:
(1) liquidated damages which have accrued as of the date of the application for payment; (2) any sums expended by the City in performing any of Contractor's obligations under the Contract which Contractor has failed to perform or has performed inadequately; (3)defective Work not remedied; (4)stop notices as allowed by state law; (5) reasonable doubt that the Work can be completed for the unpaid balance of the Total Contract Price or within the scheduled completion date; (6) unsatisfactory prosecution of the Work by Contractor; (7) unauthorized deviations from the Contract; (8) failure of Contractor to maintain or submit on a timely basis proper and sufficient documentation as required by the Contract or by City during the prosecution of the Work; (9) erroneous or false estimates by Contractor of the value of the Work performed; (10) any sums representing expenses, losses, or damages as determined by the City, incurred by the City for which Contractor is liable under the Contract; and (11) any other sums which the City is entitled to recover from Contractor under the terms of the Contract or pursuant to state law, including Section 1727 of the California Labor Code. The failure by the City to deduct any of these sums from a progress payment shall not constitute a waiver of the City's right to such sums.
3.7.6 Substitutions for Contract Retentions. Pursuant to California Public Contract Code section 22300, Contractor may substitute securities for any money withheld by the City to ensure the performance under the Contract. At the request and expense of Contractor, securities equivalent to the amount withheld shall be deposited with the City, with the State or a federally chartered bank as the escrow agent, who shall return such securities to Contractor upon satisfactory completion of the Contract. Deposit of securities with an escrow agent shall be subject to a written agreement between the escrow agent and the City, which provides that no portion of the securities shall be paid to Contractor until the City has certified to the escrow agent, in writing, that the Contract has been satisfactorily completed. The City shall certify that the Contract has been satisfactorily completed within sixty(60) days of work "completion" as defined in Section 7107(c) of the California Public Contract Code. Securities eligible for investment under this section shall be limited to those listed in Section 16430 of the Government Code, bank or savings & loan certificates of deposit, interest-bearing demand deposit accounts, stand-by letters of credit, or any other security mutually agreed to by Contractor.
3.7.7 Payment to Subcontractors. Contractor shall pay all subcontractors for and on account of work performed by such subcontractors in accordance with the terms of their respective subcontracts and as provided for in Section 7108.5 of the California Business and Professions Code. Such payments to subcontractors shall be based on the measurements and estimates made and progress payments provided to Contractor pursuant to this Contract.
3.7.8 Title to Work. As security for partial, progress, or other payments, title to Work for which such payments are made shall pass to the City at the time of payment. To the extent that title has not previously been vested in the City by reason of payments, full title shall pass to the City at delivery of the Work at the destination and time specified in this Contract. Such transferred title shall in each case be good, free and clear from any and all security interests, liens, or other encumbrances. Contractor promises and agrees that it will not pledge, hypothecate,or-otherwise encumber-the items-in-any-manner that would result in any lien, semi* — — interest, charge, or claim upon or against said items. Such transfer of title shall not imply acceptance by the City, nor relieve Contractor from the responsibility to strictly comply with the Contract, and shall not relieve Contractor of responsibility for any loss of or damage to items. 6
3.7.9 Labor and Material Releases. Contractor shall furnish City with labor and material releases from all subcontractors performing work on, or furnishing materials for, the Work governed by this Contract prior to final payment by City.
3.8 Labor
3.8 1 Prevailing Wages. Cc:litrt,or is aware of—the requirements of California Labor Code Section 1720 et seq., and 1770 et seq., as well as California Code of Regulations, Title 8, Section 16000 et seq., ("Prevailing Wage Laws"), which require the payment of prevailing wage rates and the performance of other requirements on "public works" and "maintenance"projects. Since the Work is being performed as part of an applicable"public works" or "maintenance" project, as defined by the Prevailing Wage Laws, and if the total compensation is $1,000 or more, Contractor agrees to fully comply with such Prevailing Wage Laws. City shall provide Contractor with a copy of the prevailing rates of per diem wages in effect at the commencement of this Contract. Contractor shall make copies of the prevailing rates of per diem wages for each craft, classification or type of worker needed to execute the Services available to interested parties upon request, and shall post copies at Contractor's principal place of business and at the project site. Contractor shall defend, indemnify and hold the City, its officials, officers, employees and agents free and harmless from any claim or liability arising out of any failure or alleged failure to comply with the Prevailing Wage Laws. Contractor and any subcontractor shall forfeit a penalty of up to $200 per calendar day or portion thereof for each worker paid less than the prevailing wage rates.
3.8.2 Apprenticeable Crafts. When Contractor employs workmen in an apprenticeable craft or trade, Contractor shall comply with the provisions of Section 1777.5 of the California Labor Code with respect to the employment of properly registered apprentices upon public works. The primary responsibility for compliance with said section for all apprenticeable occupations shall be with Contractor. The Contractor or any subcontractor that is determined by the Labor Commissioner to have knowingly violated Section 1777.5 shall forfeit as a civil penalty an amount not exceeding $100 for each full calendar day of noncompliance, or such greater amount as provided by law.
3.8.3 Hours of Work. Contractor is advised that eight (8) hours labor constitutes a legal day's work. Pursuant to Section 1813 of the California Labor Code, Contractor shall forfeit a penalty of $25.00 per worker for each day that each worker is permitted to work more than eight(8) hours in any one calendar day and forty(40) hours in any one calendar week, except when payment for overtime is made at not less than one and one-half (1-112) times the basic rate for that worker.
3.8.4 Payroll Records. Contractor and each subcontractor shall keep an accurate payroll record, showing the name, address, social security number, work classification, straight time and overtime hours worked each day and week, and the actual per diem wages paid to each journeyman, apprentice, worker, or other employee employed by him or her in connection with the public work. The payroll records shall be certified and shall be available for inspection at all reasonable hours at the principal office of Contractor in the manner provided in Labor Code section 1776. In the event of noncompliance with the requirements of this section, Contractor shall have 10 days in which to comply subsequent to receipt of written notice specifying in what respects sueh-Contr-aotor must eomply-with-this section—Should-noncompliance-still-be-evident - - after such 10-day period, Contractor shall, as a penalty to City, forfeit not more than $100.00 for each calendar day or portion thereof, for each worker, until strict compliance is effectuated. The amount of the forfeiture is to be determined by the Labor Commissioner. A contractor who is found to have violated the provisions of law regarding wages on Public Works with the intent to defraud shall be ineligible to bid on Public Works contracts for a period of one to three years as determined by the Labor Commissioner. Upon the request of the Division of Apprenticeship 7
Standards or the Division of Labor Standards Enforcement, such penalties shall be withheld from progress payments then due. The responsibility for compliance with this section is on Contractor.
In accordance with Labor Code section 1771.4, the Contractor and each subcontractor shall furnish the certified payroll records directly to the DIR on a weekly basis and in the format prescribed by the DIR, which may include electronic submission. The requirement to submit certified payroll records directly to the Labor Commissioner under Labor Code section 1771.4 shall not apply to work performed on a public works project that is exempt pursuant to the small project exemption specified in Labor Code Section 1771.4.
3.8.5 Contractor and Subcontractor Registration. Pursuant to Labor Code sections 1725.5 and 1771.1, all contractors and subcontractors that wish to bid on, be listed in a bid proposal, or enter into a contract to perform public work must be registered with the Department of Industrial Relations. No bid will be accepted nor any contract entered into without proof of the contractor's and subcontractors' current registration with the Department of Industrial Relations to perform public work. Contractor is directed to review, fill out and execute the Public Works Contractor Registration Certification attached hereto as Exhibit "E" prior to contract execution. Notwithstanding the foregoing, the contractor registration requirements mandated by Labor Code Sections 1725.5 and 1771.1 shall not apply to work performed on a public works project that is exempt pursuant to the small project exemption specified in Labor Code Sections 1725.5 and 1771.1.
3.8.6 Labor Compliance; Stop Orders. This Project is subject to compliance monitoring and enforcement by the Department of Industrial Relations. It shall be the Contractor's sole responsibility to evaluate and pay the cost of complying with all labor compliance requirements under this Contract and applicable law. Any stop orders issued by the Department of Industrial Relations against Contractor or any subcontractor that affect Contractor's performance of Work, including any delay, shall be Contractor's sole responsibility. Any delay arising out of or resulting from such stop orders shall be considered Contractor caused delay subject to any applicable liquidated damages and shall not be compensable by the City.
Contractor shall defend, indemnify and hold the City, its officials, officers, employees and agents free and harmless from any claim or liability arising out of stop orders issued by the Department of Industrial Relations against Contractor or any subcontractor.
3.9 Performance of Work; Jobsite Obligations.
3.9.1 Water Quality Management and Compliance.
3.9.1.1 Water Quality Management and Compliance. Contractor shall keep itself and all subcontractors, staff, and employees fully informed of and in compliance with all local, state and federal laws, rules and regulations that may impact, or be implicated by the performance of the Work including, without limitation, all applicable provisions of the Federal Water Pollution Control Act (33 U.S.C. §§ 1300); the California Porter-Cologne Water Quality Control Act (Cal Water Code §§ 13000-14950); local ordinances regulating discharges of storm water; and any and all regulations, policies, or permits issued pursuant to any such authority regulating the discharge of pollutants, as that term is used in the Porter-Cologne Water Quality Control Act, to any ground or surface water in the State. 3v-1.2 Compliance with the-Statewide-Construction-General-Permit, Contractor shall comply with all conditions of the most recent iteration of the National Pollutant Discharge Elimination System General Permit for Storm Water Discharges Associated with Construction Activity, issued by the California State Water Resources Control Board ("Permit"). It shall be Contractor's sole responsibility to file a Notice of Intent and procure coverage under the Permit for all construction activity which results in the disturbance of more than one acre of total land area or which is part of a larger common area of development or sale. Prior to initiating work, 8
Contractor shall be solely responsible for preparing and implementing a Storm Water Pollution Prevention Plan (SWPPP) as required by the Permit. Contractor shall be responsible for procuring, implementing and complying with the provisions of the Permit and the SWPPP, including the standard provisions, and monitoring and reporting requirements as required by the Permit. The Permit requires the SWPPP to be a "living document" that changes as necessary to meet the conditions and requirements of the job site as it progresses through difference phases of construction and is subject to different weather conditions. It shall be Contractor's sole responsibility to update the SWPPP as necessary to address conditions at the project site.
3.9.1.3 Other Water Quality Rules Regulations and Policies. Contractor shall comply with the lawful requirements of any applicable municipality, drainage City, or local agency regarding discharges of storm water to separate storm drain systems or other watercourses under their jurisdiction, including applicable requirements in municipal storm water management programs.
3.9.1.4 Cost of Compliance. Storm, surface, nuisance, or other waters may be encountered at various times during construction of the Work. Therefore, the Contractor, hereby acknowledges that it has investigated the risk arising from such waters and assumes any and all risks and liabilities arising therefrom.
3.9.1.5 Liability for Non-Compliance. Failure to comply with the Permit is a violation of federal and state law. Pursuant to the indemnification provisions of this Contract, Contractor hereby agrees to defend, indemnify and hold harmless the City and its directors, officials, officers, employees, volunteers and agents for any alleged violations. in addition, City may seek damages from Contractor for any delay in completing the Work in accordance with the Contract, if such delay is caused by or related to Contractor's failure to comply with the Permit,
3.9.1.6 Reservation of Right to Defend. City reserves the right to defend any enforcement action brought against the City for Contractor's failure to comply with the Permit or any other relevant water quality law, regulation, or policy. Pursuant to the indemnification provisions of this Contract, Contractor hereby agrees to be bound by, and to reimburse the City for the costs (including the City's attorney's fees) associated with, any settlement reached between the City and the relevant enforcement entity.
3.9.1.7 Training. In addition to the standard of performance requirements set forth in paragraph 3.4, Contractor warrants that all employees and subcontractors shall have sufficient skill and experience to perform the work assigned to them without impacting water quality in violation of the laws, regulations and policies described in paragraph 3.9.1. Contractor further warrants that it, its employees and subcontractors will receive adequate training, as determined by City, regarding the requirements of the laws, regulations and policies described in paragraph 3.9.1 as they may relate to the Work provided under this Contract.
Upon request, City will provide the Contractor with a list of training programs that meet the requirements of this paragraph.
3.9.2 Safety. Contractor shall execute and maintain its work so as to avoid injury or damage to any person or property. Contractor shall comply with the requirements of the specifications relating to safety measures applicable in particular operations or kinds of work. In c-ar-r-ying out-its Work-Contr-actor-shall at-all-times be in-compliance with-all applicable-local,, state and federal laws, rules and regulations, and shall exercise all necessary precautions for the safety of employees appropriate to the nature of the Work and the conditions under which the Work is to be performed. Safety precautions as applicable shall include, but shall not be limited to, adequate life protection and lifesaving equipment; adequate illumination for underground and night operations; instructions in accident prevention for all employees, such as machinery guards, safe walkways, scaffolds, ladders, bridges, gang planks, confined space procedures, trenching 9
and shoring, fall protection and other safety devices, equipment and wearing apparel as are necessary or lawfully required to prevent accidents or injuries; and adequate facilities for the proper inspection and maintenance of all safety measures. Furthermore, Contractor shall prominently display the names and telephone numbers of at least two medical doctors practicing in the vicinity of the Project, as well as the telephone number of the local ambulance service, adjacent to all telephones at the Project site.
3.9.3 Laws and Regulations. Contractor shall keep itself fully informed of and in compliance with all local, state and federal laws, rules and regulations in any manner affecting the performance of the Contract or the Work, including all Cal/OSHA requirements, and shall give all notices required by law. Contractor shall be liable for all violations of such laws and regulations in connection with the Work. if Contractor observes that the drawings or specifications are at variance with any law, rule or regulation, it shall promptly notify the City in writing. Any necessary changes shall be made by written change order. If Contractor performs any work knowing it to be contrary to such laws, rules and regulations and without giving written notice to the City, Contractor shall be solely responsible for all costs arising therefrom. City is a public entity of the State of California subject to certain provisions of the Health & Safety Code, Government Code, Public Contract Code, and Labor Code of the State. It is stipulated and agreed that all provisions of the law applicable to the public contracts of a municipality are a part of this Contract to the same extent as though set forth herein and will be complied with. Contractor shall defend, indemnify and hold City, its officials, directors, officers, employees and agents free and harmless, pursuant to the indemnification provisions of this Contract, from any claim or liability arising out of any failure or alleged failure to comply with such laws, rules or regulations.
3.9.4 Permits and Licenses. Contractor shall be responsible for securing City permits and licenses necessary to perform the Work described herein, including, but not limited to, a City Business License. While Contractor will not be charged a fee for any City permits, Contractor shall pay the City's applicable business license fee. Any ineligible contractor or subcontractor pursuant to Labor Code Sections 1777.1 and 1777.7 may not perform work on this Project.
3.9.5 Trenching Work. If the Total Contract Price exceeds $25,000 and if the Work governed by this Contract entails excavation of any trench or trenches five (5)feet or more in depth, Contractor shall comply with all applicable provisions of the California Labor Code, including Section 6705. To this end, Contractor shall submit for City's review and approval a detailed plan showing the design of shoring, bracing, sloping, or other provisions to be made for worker protection from the hazard of caving ground during the excavation of such trench or trenches. If such plan varies from the shoring system standards, the plan shall be prepared by a registered civil or structural engineer.
3.9.6 Hazardous Materials and Differing Conditions.As required by California Public Contract Code Section 7104, if this Contract involves digging trenches or other excavations that extend deeper than four (4) feet below the surface, Contractor shall promptly, and prior to disturbance of any conditions, notify City of: (1) any material discovered in excavation that Contractor believes to be a hazardous waste that is required to be removed to a Class I, Class Il or Class fll disposal site; (2) subsurface or latent physical conditions at the site differing from those indicated by City; and (3) unknown physical conditions of an unusual nature at the site, significantly different from those ordinarily encountered in-such contract-work.Upon notification, City shall promptly investigate the conditions to determine whether a change order is appropriate.
In the event of a dispute, Contractor shall not be excused from any scheduled completion date and shall proceed with all Work to be performed under the Contract, but shall retain all rights provided by the Contract or by law for making protests and resolving the dispute. 10
3.9.7 Underground Utility Facilities. To the extent required by Section 4215 of the California Government Code, City shall compensate Contractor for the costs of: (1) locating and repairing damage to underground utility facilities not caused by the failure of Contractor to exercise reasonable care; (2) removing or relocating underground utility facilities not indicated in the construction drawings; and (3)equipment necessarily idled during such work. Contractor shall not be assessed liquidated damages for delay caused by failure of City to provide for removal or relocation of such utility facilities.
3.9.8 Air Quality. Contractor must fully comply with all applicable laws, rules and regulations in furnishing or using equipment and/or providing services, including, but not limited to, emissions limits and permitting requirements imposed by the California Air Resources Board (CARB). Although CARB limits and requirements are more broad, Contractor shall specifically be aware of their application to "portable equipment", which definition is considered by GARB to include any item of equipment with a fuel-powered engine. Contractor shall indemnify City against any fines or penalties imposed by CARB, or any other governmental or regulatory agency for violations of applicable laws, rules and/or regulations by Contractor, its subcontractors, or others for whom Contractor is responsible under its indemnity obligations provided for in this Contract.
3.9.9 State Recycling Mandates. Contractor shall comply with State Recycling Mandates. Any recyclable materials/debris collected by the contractor that can be feasibly diverted via reuse or recycling must be hauled by the appropriate handler for reuse or recycling.
3.9.10 Inspection Of Site. Contractor has visited sites where Work is to be performed and has become acquainted with all conditions affecting the Work. Contractor warrants that it has made such examinations as it deems necessary to determine the condition of the Work sites, its accessibility to materials, workmen and equipment, and to determine the Contractor's ability to protect existing surface and subsurface improvements. No claim for allowances—time or money—will be allowed as to such matters.
3.9.11 Field Measurements. Contractor shall make field measurements, verify field conditions and shall carefully compare such field measurements and conditions and other information known to Contractor with the Contract Documents before commencing activities.
Errors, inconsistencies or omissions discovered shall be reported to the City immediately and prior to performing any work or altering the condition.
3.10 Completion of Work. When Contractor determines that it has completed the Work required herein, Contractor shall so notify City in writing and shall furnish all labor and material releases required by this Contract. City shall thereupon inspect the Work. If the Work is not acceptable to the City, the City shall indicate to Contractor in writing the specific portions or items of Work which are unsatisfactory or incomplete. Once Contractor determines that it has completed the incomplete or unsatisfactory Work, Contractor may request a re-inspection by the City. Once the Work is acceptable to City, City shall pay to Contractor the Total Contract Price remaining to be paid, less any amount which City may be authorized or directed by law to retain.
Payment of retention proceeds due to Contractor shall be made in accordance with Section 7107 of the California Public Contract Code.
3.11 Claims; Government Code Claim Compliance.
3.11.1 Except as otherwise provided in this Contract, if any dispute shall arise between the City and Contractor regarding performance of the Work, or any alleged change in the Work, Contractor shall timely perform the disputed work and shall give written notice of a claim for additional compensation for the work to the City within three (3) days after commencement of 11
the disputed work. Contractor's failure to give written notice within the three (3)-day period constitutes an agreement by Contractor that it will receive no extra compensation for the disputed work and shall constitute a waiver of the right to further pursue the claim under the Contract or at law.
3.11.2 Intent. Effective January 1, 1991, Section 20104 et seq., of the California Public Contract Code prescribes a process utilizing informal conferences, non-binding judicial supervised mediation, and judicial arbitration to resolve disputes on construction claims of $375,000 or less. Effective January 1, 2017, Section 9204 of the Public Contract Code prescribes a process for negotiation and mediation to resolve disputes on construction claims.
The intent of this Section is to implement Sections 20104 et seq. and Section 9204 of the California Public Contract Code. This Section shall be construed to be consistent with all applicable law, including but not limited to these statutes.
3.11.3 Claims. For purposes of this Section, "Claim" means a separate demand by the Contractor for:
3.11.3.1 An adjustment to the time for completion including, without limitation, for relief from damages or penalties for delay assessed by the City;
3.11.3.2 Payment by the City of money or damages arising from Work done by or on behalf of the Contractor pursuant to the Contract, payment for which is not otherwise expressly provided or to which the Contractor is not otherwise entitled; or
3.11.3.3 An amount the payment of which is disputed by the City.
A"Claim" does not include any demand for payment for which the Contractor has failed to provide notice, request a Change Order, or otherwise failed to follow any procedures contained in the Contract Documents.
3.11.4 Filing Claims. Claims governed by this Section may not be filed unless and until the Contractor completes any and all requirements of the Contract Documents pertaining to notices and requests for changes to the Contract Time or Contract Price, and Contractor's request for a change has been denied in whole or in part. Claims governed by this Section must be filed no later than thirty (30) days after a request for change has been denied in whole or in part or after any other event giving rise to the Claim. The Claim shall be submitted in writing to the City and shall include on its first page the following words in 16 point capital font: "THIS IS A CLAIM." The Claim shall include the all information and documents necessary to substantiate the Claim, including but not limited to those identified below. Nothing in this Section is intended to extend the time limit or supersede notice requirements otherwise provided by Contract Documents. Failure to follow such contractual requirements shall bar any Claims or subsequent proceedings for compensation or payment thereon.
3.11.5 Supporting Documentation: The Contractor shall submit all claims in the following format:
3.11.5.1 Summary description of Claim including basis of entitlement, merit_and amounfi oftime_or_m_one_y_r_equested, with_specific_reference._to_the_Contract_Document provisions pursuant to which the Claim is made
3.11.5.2 List of documents relating to claim:
(A) Specifications
12
(B) Drawings
(C) Clarifications (Requests for Information)
(D) Schedules
(E) Other
3.11.5.3 Chronology of events and correspondence
3.11.5.4 Narrative analysis of claim merit
3.11.5.5 Analysis of Claim cost, including calculations and supporting documents
3.11.5.6 Time impact analysis in CPM format
3.11.6 City's Response. Upon receipt of a Claim pursuant to this Section, the City shall conduct a reasonable review of the Claim and, within a period not to exceed 45 days, shall provide the Contractor a written statement identifying what portion of the Claim is disputed and what portion is undisputed. Any payment due on an undisputed portion of the Claim will be processed and made within 60 days after the City issues its written statement.
3.11.6.1 If the City needs approval from its governing body to provide the Contractor a written statement identifying the disputed portion and the undisputed portion of the Claim, and the City's governing body does not meet within the 45 days or within the mutually agreed to extension of time following receipt of a Claim sent by registered mail or certified mail, return receipt requested, the City shall have up to three (3) days following the next duly publicly noticed meeting of the City's governing body after the 45-day period, or extension, expires to provide the Contractor a written statement identifying the disputed portion and the undisputed portion.
3.11.6.2 Within 30 days of receipt of a Claim, the City may request in writing additional documentation supporting the Claim or relating to defenses or Claims the City may have against the Contractor. If additional information is thereafter required, it shall be requested and provided pursuant to this subdivision, upon mutual agreement of the City and the Contractor. The City's written response to the Claim, as further documented, shall be submitted to the Contractor within 30 days (if the Claim is less than $50,000, within 15 days)after receipt of the further documentation, or within a period of time no greater than that taken by the Contractor in producing the additional information or requested documentation, whichever is greater.
3.11.7 Meet and Confer. If the Contractor disputes the City's written response, or the City fails to respond within the time prescribed, the Contractor may so notify the City, in writing, either within 15 days of receipt of the City's response or within 15 days of the City's failure to respond within the time prescribed, respectively, and demand in writing an informal conference to meet and confer for settlement of the issues in dispute. Upon receipt of a demand, the City shall schedule a meet and confer conference within 30 days for settlement of the dispute.
3.11.8 Mediation. Within 10 business days following the conclusion of the meet and confer conference, if the Claim or any portion of the Claim remains in dispute, the City shall provide the Contractor a written statement identifying the portion of the Claim that remains in dispute and the portion that is undisputed. Any payment due on an undisputed portion of the Claim shall be processed and made within 60 days after the City issues its written statement. Any disputed portion of the Claim, as identified by the Contractor in writing, shall be submitted to 13
nonbinding mediation, with the City and the Contractor sharing the associated costs equally. The public entity and Contractor shall mutually agree to a mediator within 10 business days after the disputed portion of the Claim has been identified in writing, unless the parties agree to select a mediator at a later time.
3.11.8.1 if the parties cannot agree upon a mediator, each party shall select a mediator and those mediators shall select a qualified neutral third party to mediate with regard to the disputed portion of the Claim. Each party shall bear the fees and costs charged by its respective mediator in connection with the selection of the neutral mediator.
3.11,8.2 For purposes of this Section, mediation includes any nonbinding process, including, but not limited to, neutral evaluation or a dispute review board, in which an independent third party or board assists the parties in dispute resolution through negotiation or by issuance of an evaluation. Any mediation utilized shall conform to the timeframes in this Section.
3.11.8.3 Unless otherwise agreed to by the City and the Contractor in writing, the mediation conducted pursuant to this section shall excuse any further obligation under Section 20104.4 to mediate after litigation has been commenced.
3.11.8.4 The mediation shall be held no earlier than the date the Contractor completes the Work or the date that the Contractor last performs Work, whichever is earlier. All unresolved Claims shall be considered jointly in a single mediation, unless a new unrelated Claim arises after mediation is completed.
3.11.9 Procedures After Mediation. If following the mediation, the Claim or any portion remains in dispute, the Contractor must file a Claim pursuant to Chapter 1 (commencing with Section 900) and Chapter 2 (commencing with Section 910) of Part 3 of Division 3.6 of Title 1 of the Government Code prior to initiating litigation, For purposes of those provisions, the running of the period of time within which a Claim must be filed shall be tolled from the time the Contractor submits his or her written Claim pursuant to subdivision (a) until the time the Claim is denied, including any period of time utilized by the meet and confer conference.
3.11.10 Civil Actions. The following procedures are established for all civil actions filed to resolve Claims of$375,000 or less:
3.11.10.1 Within 60 days, but no earlier than 30 days, following the filing or responsive pleadings, the court shall submit the matter to non-binding mediation unless waived by mutual stipulation of both parties or unless mediation was held prior to commencement of the action in accordance with Public Contract Code section 9204 and the terms of this Contract. The mediation process shall provide for the selection within 15 days by both parties of a disinterested third person as mediator, shall be commenced within 30 days of the submittal, and shall be concluded within 15 days from the commencement of the mediation unless a time requirement is extended upon a good cause showing to the court.
3.11,10.2 If the matter remains in dispute, the case shall be submitted to judicial arbitration pursuant to Chapter 2.5 (commencing with Section 1141.10) of Title 3 of Part -3-of-the-Code-of-Civil-Pr-ocedur-e,-notwithstanding--Section 11-14.1 1-of that--code The Civil ---- -- - --- Discovery Act of 1986 (Article 3 (commencing with Section 2016) of Chapter 3 of Title 3 of Part 4 of the Code of Civil Procedure) shall apply to any proceeding brought under this subdivision consistent with the rules pertaining to judicial arbitration. In addition to Chapter 2.5 (commencing with Section 1141.10) of Title 3 of Part 3 of the Code of Civil Procedure, (A)arbitrators shall, when possible, be experienced in construction law, and (B) any party appealing an arbitration award 14
who does not obtain a more favorable judgment shall, in addition to payment of costs and fees under that chapter, also pay the attorney's fees on appeal of the other party.
3.11.11 Government Code Claim Procedures.
3.11.11.1 This Section does not apply to tort claims and nothing in this Section is intended nor shall be construed to change the time periods for filing tort claims or actions specified by Chapter 1 (commending with Section 900) and Chapter 2 (commencing with Section 910) of Part 3 of Division 3.5 of Title 1 of the Government Code.
3.11.11.2 In addition to any and all requirements of the Contract Documents pertaining to notices of and requests for adjustment to the Contract Time, Contract Price, or compensation or payment for additional work, disputed Work, construction claims and/or changed conditions, the Contractor must comply with the claim procedures set forth in Government Code Section 900, et seq. prior to filing any lawsuit against the City.
3.11.11.3 Such Government Code claims and any subsequent lawsuit based upon the Government.Code claims shall be limited to those matters that remain unresolved after all procedures pertaining to adjustment of the Contract Time or Contract Price for additional work, disputed Work, construction claims, and/or changed conditions have been followed by Contractor. If Contractor does not comply with the Government Code claim procedure or the prerequisite contractual requirements, Contractor may not file any action against the City.
3.11.11.4 A Government Code claim must be filed no earlier than the date the Work is completed or the date the Contractor last performs Work on the Project, whichever occurs first. A Government Code claim shall be inclusive of all unresolved Claims known to Contractor or that should reasonably by known to Contractor excepting only new unrelated Claims that arise after the Government Code claim is submitted.
3.11.12 Non-Waiver. The City's failure to respond to a Claim from the Contractor within the time periods described in this Section or to otherwise meet the time requirements of this Section shall result in the Claim being deemed rejected in its entirety, and shall not constitute a waiver of any rights under this Section.
3.12 Loss and Damage. Except as may otherwise be limited by law, Contractor shall be responsible for all loss and damage which may arise out of the nature of the Work agreed to herein, or from the action of the elements, or from any unforeseen difficulties which may arise or be encountered in the prosecution of the Work until the same is fully completed and accepted by City. In the event of damage proximately caused by an Act of God, as defined by Section 7105 of the Public Contract Code, the City may terminate this Contract pursuant to Section 3.18.3; provided, however, that the City needs to provide Contractor with only one (1) day advanced written notice.
3.13 Indemnification.
3.13.1 Scope of Indemnity. To the fullest extent permitted by law, Contractor shall defend, indemnify and hold the City, its officials, employees, agents and volunteers free and harmless from any and all claims, demands,aa.uses of aelLon.,quits.,_a_cti_o_ns,_procee_d.i.ngs,_costs, expenses, liability, judgments, awards, decrees, settlements, loss, damage or injury of any kind, in law or equity, regardless of whether the allegations are false, fraudulent, or groundless, to property or persons, including wrongful death, (collectively, "Claims") in any manner arising out of, pertaining to, or incident to any alleged acts, errors or omissions, or willful misconduct of Contractor, its officials, officers, employees, subcontractors, consultants or agents in connection with the performance of the Contractor's services, the Project or this Contract, including without 15
limitation the payment of all expert witness fees, attorneys' fees and other related costs and expenses. Notwithstanding the foregoing, to the extent required by Civil Code section 2782, Contractor's indemnity obligation shall not apply to liability for damages for death or bodily injury to persons, injury to property, or any other loss, damage or expense which is caused by the sole or active negligence or willful misconduct of the City or the City's agents, servants, or independent contractors who are directly responsible to the City, or for defects in design furnished by those persons.
3.13.2 Additional Indemnity Obligations. Contractor shall defend, with counsel of City's choosing and at Contractor's own cost, expense and risk, any and all Claims covered by this section that may be brought or instituted against City or its officials, employees, agents and authorized volunteers. In addition, Contractor shall pay and satisfy any judgment, award or decree that may be rendered against City or its officials, employees, agents and authorized volunteers as part of any such claim, suit, action or other proceeding. Contractor shall also reimburse City for the cost of any settlement paid by City or its officials, employees, agents and authorized volunteers as part of any such claim, suit, action or other proceeding. Such reimbursement shall include payment for City's attorney's fees and costs, including expert witness fees. Contractor shall reimburse City and its officials, employees, agents and authorized volunteers, for any and all legal expenses and costs incurred by each of them in connection therewith or in enforcing the indemnity herein provided. Contractor's obligation to indemnify shall survive expiration or termination of this Contract, and shall not be restricted to insurance proceeds, if any, received by the City, its officials, employees, agents and authorized volunteers.
3.14 Insurance.
3.14.1 Time for Compliance. Contractor shall not commence Work under this Contract until it has provided evidence satisfactory to the City that it has secured all insurance required under this section. In addition, Contractor shall not allow any subcontractor to commence work on any subcontract until it has provided evidence satisfactory to the City that the subcontractor has secured all insurance required under this section. Failure to provide and maintain all required insurance shall be grounds for the City to terminate this Contract for cause.
3.14.2 Minimum Requirements. Contractor shall, at its expense, procure and maintain for the duration of the Contract insurance against claims for injuries to persons or damages to property which may arise from or in connection with the performance of the Work hereunder by Contractor, its agents, representatives, employees or subcontractors. Contractor shall also require all of its subcontractors to procure and maintain the same insurance for the duration of the Contract. Such insurance shall meet at least the following minimum levels of coverage:
3.14.2.1 Minimum Scope of Insurance. Coverage shall be at least as broad as the latest version of the following: (1) General Liability: Insurance Services Office Commercial General Liability coverage(occurrence form CG 00 01)OR Insurance Services Office Owners and Contractors Protective Liability Coverage Form (CG 00 09 11 88) (coverage for operations of designated contractor); (2)Automobile Liability: Insurance Services Office Business Auto Coverage form number CA 00 01, code 1 (any auto); (3) Workers' Compensation and Employer's Liability: Workers' Compensation insurance as required by the State of California and — Employer's Liability Insurance,and (4) Builders°°7All-Risk: Builder-s'IAII Risk-insurance covering for all risks of loss, including explosion, collapse, underground excavation and removal of lateral support(and including earthquakes and floods if requested by the City). Policies shall not contain exclusions contrary to this Contract.
3.14.2.2 Minimum Limits of Insurance. Contractor shall maintain limits no less than: (1) General Liability: $1,000,000 MINIMUM per occurrence and $2,000,000 general 16
aggregate for bodily injury, personal injury and property damage; (2) Automobile Liability:
$1,000,000 MINIMUM per accident for bodily injury and property damage; (3) Workers' Compensation and Employer's Liability Workers' compensation limits as required by the Labor Code of the State of California. Employer's Liability limits of$1,000,000 MINIMUM each accident, policy limit bodily injury or disease, and each employee bodily injury or disease; and (4) Builders'/All Risk: Completed value of the project. Defense costs shall be available in addition to the limits, Notwithstanding the minimum limits specified herein, any available coverage shall be provided to the parties required to be named as additional insureds pursuant to this Contract.
3.14.2.3 Notices; Cancellation or Reduction of Coverage. At least fifteen (15) days prior to the expiration of any such policy, evidence showing that such insurance coverage has been renewed or extended shall be filed with the City. If such coverage is cancelled or materially reduced, Contractor shall, within ten (10) days after receipt of written notice of such cancellation or reduction of coverage, file with the City evidence of insurance showing that the required insurance has been reinstated or has been provided through another insurance company or companies. In the event any policy of insurance required under this Contract does not comply with these specifications or is canceled and not replaced, the City has the right but not the duty to obtain the insurance it deems necessary and any premium paid by the City will be promptly reimbursed by Contractor or the City may withhold amounts sufficient to pay premium from Contractor payments. In the alternative, the City may suspend or terminate this Contract.
3.14.3 Insurance Endorsements. The insurance policies shall contain the following provisions, or Contractor shall provide endorsements (amendments) on forms supplied or approved by the City to add the following provisions to the insurance policies:
3.14.3.1 General Liability. (1)Such policy shall give the City, its officials, employees, agents and volunteers additional insured status using ISO endorsements CG20 10 10 01 plus CG20 37 10 01, or endorsements providing the exact same coverage, with respect to the Work or operations performed by or on behalf of Contractor, including materials, parts or equipment furnished in connection with such work; (2) all policies shall waive or shall permit Contractor to waive all rights of subrogation which may be obtained by the Contractor or any insurer by virtue of payment of any loss or any coverage provided to any person named as an additional insured pursuant to this Contract, and Contractor agrees to waive all such rights of subrogation; and (3) the insurance coverage shall be primary insurance as respects the City, its officials, employees, agents and volunteers, or if excess, shall stand in an unbroken chain of coverage excess of Contractor's scheduled underlying coverage. Any insurance or self-insurance maintained by the City, its officials, employees, agents and volunteers shall be excess of Contractor's insurance and shall not be called upon to contribute with it.
3.14.3.2 Automobile Liability. (1) Such policy shall give the City, its officials, employees, agents and volunteers additional insured status with respect to the ownership, operation, maintenance, use, loading or unloading of any auto owned, leased, hired or borrowed by Contractor or for which Contractor is responsible; (2) all policies shall waive or shall permit Contractor to waive all rights of subrogation which may be obtained by the Contractor or any insurer by virtue of payment of any loss or any coverage provided to any person named as an additional insured pursuant to this Contract, and Contractor agrees to waive all such rights of subrogation; and (3) the insurance coverage shall be primary insurance as respects the City, its ofieials;employees,—agents-and-volunteer-s, or-if-excess, shall-stand-in-an-unbroken-chain-of--- - coverage excess of Contractor's scheduled underlying coverage. Any insurance or self-insurance maintained by the City, its officials, employees, agents and volunteers shall be excess of Contractor's insurance and shall not be called upon to contribute with it in any way.
3.14.3.3 Workers' Compensation and Employer's Liability Coverage.
The insurer shall agree to waive all rights of subrogation against the City, its officials, employees, 17
agents and volunteers for losses paid under the terms of the insurance policy which arise from work performed by Contractor.
3.14.3.4 All Coverages. Each insurance policy required by this Contract shall be endorsed to state that: (1)coverage shall not be suspended, voided, reduced or canceled except after thirty (30) days prior written notice by certified mail, return receipt requested, has been given to the City; and(2) any failure to comply with reporting or other provisions of the policies, including breaches of warranties, shall not affect coverage provided to the City, its officials, employees, agents and volunteers.
3.14.4 Builders'/All Risk Policy Requirements. The builders'lall risk insurance shall provide that the City be named as loss payee. In addition, the insurer shall waive all rights of subrogation against the City.
3.14.5 Separation of Insureds; No Special Limitations. All insurance required by this Section shall contain standard separation of insureds provisions. In addition, such insurance shall not contain any special limitations on the scope of protection afforded to the City, its officials, employees, agents and volunteers.
3.14.6 Professional Liability insurance. All architects, engineers, consultants or design professionals retained by Contractor shall also procure and maintain, for a period of five (5) years following completion of the Contract, errors and omissions liability insurance with a limit of not less than $1,000,000 $1,000,000 MINIMUM per occurrence. This insurance shall name the City, its directors, officials, officers, employees, agents and volunteers as additional and insureds with respect to Work performed and shall otherwise comply with all requirements of this Section. Defense costs shall be paid in addition to the limits.
3.14.7 Deductibles and Self-Insurance Retentions. Any deductibles or self- insured retentions must be declared to and approved by the City. Contractor shall guarantee that, at the option of the City, either: (1) the insurer shall reduce or eliminate such deductibles or self- insured retentions as respects the City, its officials, employees, agents and authorized volunteers; or (2) the Contractor shall procure a bond or other financial guarantee acceptable to the City guaranteeing payment of losses and related investigation costs, claims and administrative and defense expenses.
3.14.8 Acceptability of Insurers. Insurance is to be placed with insurers with a current A.M. Best's rating no less than A:VII, licensed to do business in California, and satisfactory to the City. Exception may be made for the State Compensation Insurance Fund when not specifically rated.
3.14.9 Verification of Coverage. Contractor shall furnish City with original certificates of insurance and endorsements effecting coverage required by this Contract on forms satisfactory to the City. The certificates and endorsements for each insurance policy shall be signed by a person authorized by that insurer to bind coverage on its behalf, and shall be on forms supplied or approved by the City. All certificates and endorsements must be received and approved by the City before work commences. The City reserves the right to require complete, certified copies of all required insurance policies, at any time.
3.14.10 Subcontractors. All subcontractors shall meet the requirements of this Section before commencing Work. Contractor shall furnish separate certificates and endorsements for each subcontractor. Subcontractor policies of General Liability insurance shall name the City, its officials, employees, agents and authorized volunteers as additional insureds using form ISO 20 38 0413 or endorsements providing the exact same coverage. All coverages 18
for subcontractors shall be subject to all of the requirements stated herein except as otherwise agreed to by the City in writing.
3.14.11 Reporting of Claims. Contractor shall report to the City, in addition to Contractor's insurer, any and all insurance claims submitted by Contractor in connection with the Work under this Contract.
3.15 Bond Requirements.
3.15.1 Payment Bond. If required by law or otherwise specifically requested by City in Exhibit "C" attached hereto and incorporated herein by reference, Contractor shall execute and provide to City concurrently with this Contract a Payment Bond in an amount required by the City and in a form provided or approved by the City. If such bond is required, no payment will be made to Contractor until the bond has been received and approved by the City.
3.15.2 Performance Bond. If specifically requested by City in Exhibit "C" attached hereto and incorporated herein by reference, Contractor shall execute and provide to City concurrently with this Contract a Performance Bond in an amount required by the City and in a form provided or approved by the City. If such bond is required, no payment will be made to Contractor until the bond has been received and approved by the City.
3.15.3 Bond Provisions. Should, in City's sole opinion, any bond become insufficient or any surety be found to be unsatisfactory, Contractor shall renew or replace the effected bond within (ten) 10 days of receiving notice from City. In the event the surety or Contractor intends to reduce or cancel any required bond, at least thirty (30) days prior written notice shall be given to the City, and Contractor shall post acceptable replacement bonds at least ten (10) days prior to expiration of the original bonds. No further payments shall be deemed due or will be made under this Contract until any replacement bonds required by this Section are accepted by the City. To the extent, if any, that the Total Contract Price is increased in accordance with the Contract, Contractor shall, upon request of the City, cause the amount of the bond to be increased accordingly and shall promptly deliver satisfactory evidence of such increase to the City. If Contractor fails to furnish any required bond, the City may terminate the Contract for cause.
3.15.4 Surety Qualifications. Only bonds executed by an admitted surety insurer, as defined in California Code of Civil Procedure Section 995.120, shall be accepted. If a California-admitted surety insurer issuing bonds does not meet these requirements, the insurer will be considered qualified if it is in conformance with Section 995.660 of the California Code of Civil Procedure, and proof of such is provided to the City.
3.16 Warranty. Contractor warrants all Work under the Contract(which for purposes of this Section shall be deemed to include unauthorized work which has not been removed and any non-conforming materials incorporated into the Work) to be of good quality and free from any defective or faulty material and workmanship. Contractor agrees that for a period of one year(or the period of time specified elsewhere in the Contract or in any guarantee or warranty provided by any manufacturer or supplier of equipment or materials incorporated into the Work, whichever is later)after the date of final acceptance, Contractor shall within ten (10) days after being notified _in.writing_by the-City_.of_an-y_defect_in-the_Worlf-or-non-canforr-xtance-of=the--Work-to-the-.Contract,--- ----- - commence and prosecute with due diligence all Work necessary to fulfill the terms of the warranty at its sole cost and expense. Contractor shall act sooner as requested by the City in response to an emergency. In addition, Contractor shall, at its sole cost and expense, repair and replace any portions of the Work (or work of other contractors) damaged by its defective Work or which becomes damaged in the course of repairing or replacing defective Work. For any Work so corrected, Contractor's obligation hereunder to correct defective Work shall be reinstated for an 19
additional one year period, commencing with the date of acceptance of such corrected Work.
Contractor shall perform such tests as the City may require to verify that any corrective actions, including, without limitation, redesign, repairs, and replacements comply with the requirements of the Contract. All costs associated with such corrective actions and testing, including the removal, replacement, and reinstitution of equipment and materials necessary to gain access, shall be the sole responsibility of Contractor. All warranties and guarantees of subcontractors, suppliers and manufacturers with respect to any portion of the Work, whether express or implied, are deemed to be obtained by Contractor for the benefit of the City, regardless of whether or not such warranties and guarantees have been transferred or assigned to the City by separate agreement and Contractor agrees to enforce such warranties and guarantees, if necessary, on behalf of the City. In the event that Contractor fails to perform its obligations under this Section, or under any other warranty or guaranty under this Contract, to the reasonable satisfaction of the City, the City shall have the right to correct and replace any defective or non-conforming Work and any work damaged by such work or the replacement or correction thereof at Contractor's sole expense.
Contractor shall be obligated to fully reimburse the City for any expenses incurred hereunder upon demand.
3.17 Employee/Labor Certifications.
3.17.1 Contractor's Labor Certification. By its signature hereunder, Contractor certifies that he is aware of the provisions of Section 3700 of the California Labor Code which require every employer to be insured against liability for Worker's Compensation or to undertake self-insurance in accordance with the provisions of that Code, and agrees to comply with such provisions before commencing the performance of the Work. A certification form for this purpose, which is attached to this Contract as Exhibit "D" and incorporated herein by reference, shall be executed simultaneously with this Contract.
3.17.2 Equal Opportunity Employment. Contractor represents that it is an equal opportunity employer and that it shall not discriminate against any employee or applicant for employment because of race, religion, color, national origin, ancestry, sex, age or other interests protected by the State or Federal Constitutions. Such non-discrimination shall include, but not be limited to, all activities related to initial employment, upgrading, demotion, transfer, recruitment or recruitment advertising, layoff or termination.
3.17.3 Verification of Employment Eligibility. By executing this Contract, Contractor verifies that it fully complies with all requirements and restrictions of state and federal law respecting the employment of undocumented aliens, including, but not limited to, the Immigration Reform and Control Act of 1986, as may be amended from time to time, and shall require all subcontractors and sub-subcontractors to comply with the same.
3.18 General Provisions.
3.18.1 City's Representative. The City hereby designates the Recreation & Community Services Supervisor, Mehgan Meade, or his or her designee, to act as its representative for the performance of this Contract ("City's Representative"). City's Representative shall have the power to act on behalf of the City for all purposes under this Contract. Contractor shall not accept direction or orders from any person other than the City's — -Representative-or-his or-her-designee.
3.18.2 Contractor's Representative. Before starting the Work, Contractor shall submit in writing the name, qualifications and experience of its proposed representative who shall be subject to the review and approval of the City (`"Contractor's Representative"). Following approval by the City, Contractor's Representative shall have full authority to represent and act on behalf of Contractor for all purposes under this Contract. Contractor's Representative shall 20
supervise and direct the Work, using his best skill and attention, and shall be responsible for all construction means, methods, techniques, sequences and procedures and for the satisfactory coordination of all portions of the Work under this Contract. Contractor's Representative shall devote full time to the Project and either he or his designee, who shall be acceptable to the City, shall be present at the Work site at all times that any Work is in progress and at any time that any employee or subcontractor of Contractor is present at the Work site. Arrangements for responsible supervision, acceptable to the City, shall be made for emergency Work which may be required. Should Contractor desire to change its Contractor's Representative, Contractor shall provide the information specified above and obtain the City's written approval.
3.18.3 Termination. This Contract may be terminated by City at any time, either with our without cause, by giving Contractor three (3) days advance written notice. in the event of termination by City for any reason other than the fault of Contractor, City shall pay Contractor for all Work performed up to that time as provided herein. In the event of breach of the Contract by Contractor, City may terminate the Contract immediately without notice, may reduce payment to Contractor in the amount necessary to offset City's resulting damages, and may pursue any other available recourse against Contractor. Contractor may not terminate this Contract except for cause. In the event this Contract is terminated in whole or in part as provided, City may procure, upon such terms and in such manner as it may determine appropriate, services similar to those terminated. Further, if this Contract is terminated as provided, City may require Contractor to provide all finished or unfinished documents, data, diagrams, drawings, materials or other matter prepared or built by Contractor in connection with its performance of this Contract.
Contractor shall be required to provide such document and other information within fifteen (15) days of the request.
3.18.4 Contract Interpretation. Should any question arise regarding the meaning or import of any of the provisions of this Contract or written or oral instructions from City, the matter shall be referred to City's Representative, whose decision shall be binding upon Contractor.
3.18.5 Anti-Trust Claims. This provision shall be operative if this Contract is applicable to California Public Contract Code Section 7103.5. In entering into this Contract to supply goods, services or materials, Contractor hereby offers and agrees to assign to the City all rights, title, and interest in and to all causes of action it may have under Section 4 of the Clayton Act (15 U.S.C. Section 15) or under the Cartwright Act (Chapter 2, commencing with Section 16700, of Part 2 of Division 7 of the Business and Professions Code) arising from purchases of goods, services, or materials pursuant to the Contract, This assignment shall be made and become effective at the time the City tender final payment to Contractor, without further acknowledgment by the Parties.
3.18.6 Notices. All notices hereunder and communications regarding interpretation of the terms of the Contract or changes thereto shall be provided by the mailing thereof by registered or certified mail, return receipt requested, postage prepaid and addressed as follows:
CONTRACTOR:
West-Coast Netting_._--
5075 Flightline Dr.
Kingman, AZ 86401
ATTN: MIKE HEBERT
21
CITY:
City of Upland
460 N. Euclid Avenue
Upland, CA 91786
Attn: City Manager
With Copy To:
City of Upland
460 N. Euclid Avenue
Upland, CA 91786
Attn: City Attorney
Any notice so given shall be considered received by the other Party three (3) days after deposit in the U.S. Mail as stated above and addressed to the Party at the above address. Actual notice shall be deemed adequate notice on the date actual notice occurred, regardless of the method of service.
3.18.7 Time of Essence. Time is of the essence in the performance of this Contract.
3.18.8 Assignment Forbidden. Contractor shall not, either voluntarily or by action of law, assign or transfer this Contract or any obligation, right, title or interest assumed by Contractor herein without the prior written consent of City. If Contractor attempts an assignment or transfer of this Contract or any obligation, right, title or interest herein, City may, at its option, terminate and revoke the Contract and shall thereupon be relieved from any and all obligations to Contractor or its assignee or transferee.
3.18.9 No Third Party Beneficiaries. There are no intended third party beneficiaries of any right or obligation assumed by the Parties.
3.18.10 Laws: Venue. This Contract shall be interpreted in accordance with the laws of the State of California. If any action is brought to interpret or enforce any term of this Contract, the action shall be brought in a state or federal court situated in the County of San Bernardino, State of California.
3.18.11 Counterparts. This Contract may be executed in counterparts, each of which shall constitute an original.
3.18.12 Successors. The Parties do for themselves, their heirs, executors, administrators, successors, and assigns agree to the full performance of all of the provisions contained in this Contract.
•
3.18.13 Solicitation. Contractor maintains and warrants that it has not employed nor retained any company or person, other than a bona fide employee working solely for Contractor, to solicit or secure this Contract. Further, Contractor warrants that it has not paid nor has it agreed to pay any company or person, other than a bona fide employee working solely for Cn_atLactox, a.o_y_f_ee,__com.m.i_s_sion,_perce.ntage,.__hr_oke.r_age_fee,gifro.r_oth.er_co.ns.ide.ratio,n______ contingent upon or resulting from the award or making of this Contract. For breach or violation of this warranty, City shall have the right to terminate this Contract without liability.
3.18.14 Conflict of Interest. Contractor maintains and warrants that it has not employed nor retained any company or person, other than a bona fide employee working solely for Contractor, to solicit or secure this Contract. Further, Contractor warrants that it has not paid 22
nor has it agreed to pay any company or person, other than a bona fide employee working solely for Contractor, any fee, commission, percentage, brokerage fee, gift or other consideration contingent upon or resulting from the award or making of this Contract. For breach or violation of this warranty, City shall have the right to rescind this Contract without liability. For the term of this Contract, no director, official, officer or employee of City, during the term of his or her service with City, shall have any direct interest in this Contract, or obtain any present or anticipated material benefit arising therefrom. In addition, Contractor agrees to file, or to cause its employees or subcontractors to file, a Statement of Economic Interest with the City's Filing Officer as required under state law in the performance of the Work.
3.18.15 Certification of License.
3.18.15.1 Contractor certifies that as of the date of execution of this Contract, Contractor has a current contractor's license of the classification indicated below under Contractor's signature.
3.18.15.2 Contractors are required by law to be licensed and regulated by the Contractors' State License Board which has jurisdiction to investigate complaints against contractors if a complaint regarding a patent act or omission is filed within four (4) years of the date of the alleged violation. A complaint regarding a latent actor omission pertaining to structural defects must be filed within ten (10) years of the date of the alleged violation. Any questions concerning a contractor may be referred to the Registrar, Contractors' State License Board, P.O.
Box 26000, Sacramento, California 95826.
3.18.16 Authority to Enter Contract. Each Party warrants that the individuals who have signed this Contract have the legal power, right and authority to make this Contract and bind each respective Party.
3.18.17 Entire Contract, Modification. This Contract contains the entire agreement of the Parties with respect to the subject matter hereof, and supersedes all prior negotiations, understandings or agreements. This Contract may only be modified by a writing signed by both Parties.
3.18.18 Non-Waiver. None of the provisions of this Contract shall be considered waived by either party, unless such waiver is specifically specified in writing.
3.18.19 City's Right to Employ Other Contractors. City reserves right to employ other contractors in connection with this Project or other projects. [SIGNATURES ON FOLLOWING PAGE]
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SIGNATURE PAGE FOR CONSTRUCTION CONTRACT
BETWEEN THE CITY OF UPLAND
AND WEST COAST NETTING
IN WITNESS WHEREOF, the Parties hereto have executed this Agreement as of the date first written above.
CITY OF UPLAND WEST COAST NETTING
APP V D BY: ;.
Signature
el
Man er Name
ATTE D
Title
Keri Johnson
City Clerk
APPROVED AS TO FORM: Signature
Best Best & Krieger LLP Name
City Attorney n
4' au5'44Yt�ktotl
Title
Contractor's License Number and
Classification
® C7 7 o #ea_
DIR Registration Number
24
EXHIBIT A
SCOPE OF SERVICE
2 Soccer Backstop Net Installations
ADDRESS:CABRILLO PARK-W.11TH STREET UPLAND
INSTALL 6 NEW STEEL POLES (PAINTED OR GALV)
25 FEET ABOVE GROUND X 100 FT WIDE
INSTALL U_V.TREATED I(36T 4 INCH SOCCER NETTING
3 POLES EACH BACKSTOP
POLE.DIMENSIONS: 6 MICH>INSTALLED W/CONCRETE
INCLUDES PREVAILING WAGE&.PAYMENT BOND 3%
PRICE INCLUDES ENGINEERING COSTS
LOT PRICE FOR ABOVE
DOES NOT INCLUDE BUILDING PERMINT COSTS
Exhibit A-1
EXHIBIT B
CONTRACTOR'S BID
QUOTATION
wet, COAST WIT tI INSTALLED WCONCRETE
INCLUDES PREVAILING WAGE&PAYMENT BOND 3%
PRICE INCLUDES ENGINEERING COSTS
1 LOT PRICE FOR ABOVE $54,500.00 554.500.0C DOES NOT INCLUDE BUILDING PER1sILIT COSTS
Prtcurg given for steel product are based on pricing at time of request. Pricing is subject to change and will be
confirmed at the time of steel product order.
Price excludes:tax.bonds.permits,project labor agreement. EST.SUB TOTAL ` $54.500.00 union&prevailing wages,union labor.off haul and/or Est.Tax S0.0C disposal of spoils.turf and or irrigation system damage Est.S&H repair,drilling in hard rock or unstable soil conditions unless noted above. Additional charge,apply if required. EST.TOTAL CA LICE=766160 DIRa 1000001542
Above Price;Good For: 30 days Signature: 0E4,r Exhibit B- 1
EXHIBIT C
BONDS
Concurrently with this Contract, the Contractor shall deliver to the City four identical counterparts of the Performance Bond and Payment Bond on the forms supplied by the City and included as Bond Provisions to the Contract. The surety supplying the bond must be an admitted surety insurer, as defined in the Code of Civil Procedure Section 995.120, authorized to do business as such in the State of California and satisfactory to the City. The Performance Bond and the Payment Bond shall be for one hundred percent (100%) of the Total Contract Price, plus the amount of a ten percent (10%) contingency, all as set forth below.
A Payment Bond and a Performance Bond, each in the amount of$59,950 Fifty-Nine Thousand, Nine Hundred Fifty Dollars, are required.
Exhibit C-1
EXHIBIT D
CERTIFICATION
LABOR CODE•SECTION 1861
I, the undersigned Contractor, am aware of the provisions of Section 3700, plag., of the California Labor Code which require every employer to be insured against liability for Worker's Compensation or to undertake self-Insurance in accordance with the provisions of the Code,and I,the undersigned Contractor, agree to and will comply with such provisions before commencing the performance of the Work on this Contract.
West Coast Netting
By:
Signature
i
Name(Print)
Title(Print)
EXHIBIT E
PU LICWORKSCONTRACTOR REGISTRATION CERTIFICATION
Pursuant to Labor Code sections 1725.5 and 1771.1,all contractors and subcontractors that wish to bid on, be listed in a bid proposal, or enter into a contract to perform public work must be registered with the Department of Industrial Relations. See http:fl www.d'r,ca.eovlPublic . +.!p►ks}PublicWcrics.htmt for additional'information.
No bid will be accepted nor any contract entered into without proof of the contractor's and subcontractors' current registration with the Department of Industrial Relations to perform public work.
Contractor hereby certifies that It is aware of the registration requirements set forth In Labor Coda sections 1725.5 end 1771.1 and Is currently registered as a contractor with the Department of . Industrial Relations.'
Name of Contractor: Ccdca s f
DiR Registration Number: rs
DIR Registration Expiration: (4/ .
Small Project Exemption: ,Yes or x.-__-No
Unless Contractor is exempt pursuant to the small project exemption, Contractor further acknowledges:
1. Contractor shall maintain a current DIR registration for the duration of the project.
2. Contractor shall include the requirements of Labor Code sections 1725.5 and 1771.1 in its contract with subcontractors and ensure that all subcontractors are r-t[stored at the time of bid opening and maintain registration status for the duration of the project.
3. Failure to submit this form or comply with any of the above requirements may result in a finding that the bid is nonresponsive.
Name of Contractor: !N u*3J' tore$r N "7 "'rrN ,
Signature 4-.,..
Name and Title: ''yo,s, Aeotai. ,t.,. �S
Dated: //.
it the Project Is exempt from the contractor registration requirements pursuant to the small project exemption under Labor Code Sections 1725.5 and 1771.1.please mark"Yes"to response to`Small Project Exemption.`
4c,°v °p`qt CITFUP LAND
o "The City of Gracious Living"
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DATE: June 22,2026
TO: MAYOR AND CITY COUNCIL
FROM: MICHAEL BLAY,CITY MANAGER
PREPARED BY:DAMIEN R.ARRULA,ASSISTANT CITY MANAGER
JESSICA GORDON,DEPUTY PUBLIC WORKS DIRECTOR-OPERATIONS
ALEX CARRASCO,OPERATIONS SUPERVISOR
SUBJECT: CONSIDER APPROVAL OF FIRST AMENDMENT TO THE MAINTENANCE SERVICES AGREEMENT WITH HARDY&HARPER,INC.
RECOMMENDED ACTION:
It is recommended that the City Council approve a First Amendment to the Maintenance Services Agreement with Hardy&Harper,Inc.,to extend the term for an additional one-year period,through June 30,2027,for On-Call Asphalt Pavement Repair Services;and authorize the City Manager to execute the amendment.
GOAL STATEMENT
The proposed action supports the City's objective to provide excellent customer service to the community and continue the integrity of our roads and alleyways maintenance standards and requirements.
BACKGROUND
On August 14,2023,the City Council approved an initial three(3)year Contract with Hardy&Harper, Inc. (H&H) for On-Call Asphalt Pavement Repair Services with an option for three (3) additional one-year terms. The initial 3- year term will conclude on June 30, 2026. The contracted budget amount varies annually based upon the amount of funding approved by City Council in the annual budget.A provision in the contract allows for a yearly adjustment to the contract unit costs based upon the Consumer Price Index(CPI)if the optional extensions are exercised.
ISSUES AND ANALYS
H&H has consistently provided reliable and responsive services related to asphalt street repairs, striping and seal coating, and other miscellaneous maintenance services performed on a time-and-material basis. Approval of the Amendment will allow the City to continue utilizing a trusted contractor to efficiently address ongoing street maintenance repair needs.
The proposed amendment will provide continuity of services and ensure the City can promptly respond to routine maintenance requests, emergency repairs, and other unforeseen roadway maintenance needs. Maintaining this Agreement supports the City's ongoing efforts to preserve roadway infrastructure, improve public safety, and minimize service disruptions to the community. Staff has determined that in addition to H&H's satisfactory performance,they have also provided competitive pricing along with the necessary expertise and equipment required to perfume these services in a timely manner.
ENVIRONMENTAL DETERMINATION
The project has been assessed in accordance with the authority and criteria contained in the California Environmental Quality Act ("CEQA"), and the State CEQA Guidelines, and determined to be categorically exempt from further environmental review pursuant to Section 15301(c)(Existing Facilities), of CEQA Guidelines. The project involves repair and maintenance of existing public facilities and does not involve any expansion of use beyond that which exists.
FISCAL IMPACTS
The total cost of the agreement is estimated at$445,000 based on the current budget.There are available funds in the adopted biennial Fiscal Year 2026-27—2027-28 budget in the following accounts:
Account Description Account Number Annual Amount Measure I, Citywide Pavement Maintenance 2057500 5540 74011 $195,000 2023-2024
Measure I, Citywide Pavement Maintenance 2057500-5540-74020 $250,000 2026-2027
TOTAL $445,000
ALTERNATIVES
Provide alternative direction to staff.
CEQA: Determined to be categorically exempt from further environmental review pursuant to Section 15301(c) (Existing Facilities),of the CEQA guidelines.
AMENDMENT NO. 1 TO
MAINTENANCE SERVICES AGREEMENT FOR ASPHALT PAVEMENT REPAIR SERVICES WITH HARDY & HARPER, INC.
This Amendment No. 1 to the Maintenance Services Agreement ("Amendment No. 1") is made and entered into as of June 22, 2026, by and between the City of Upland, a general law city and municipal corporation organized under the laws of the State of California ("City"), and Hardy & Harper, Inc., a California corporation ("Contractor"). City and Contractor are sometimes referred to herein individually as a "Party" and collectively as the "Parties."
RECITALS
A. WHEREAS, on August 14, 2023, the City and Contractor entered into a Maintenance Services Agreement for On-Call Asphalt Pavement Repair Services ("the Agreement"); and
B. WHEREAS, pursuant to Section 3.1.2 of the Agreement, the Parties wish to enter into this Amendment No. 1 to extend the Agreement for an additional one-year term; and
C. WHEREAS, pursuant to Section 3.1.2 of the Agreement, Contractor timely requested an annual rate adjustment under the Agreement, and the Parties desire to adjust Contractor's rates consistent with the Agreement.
NOW THEREFORE, in consideration of the mutual promises and undertakings the Parties hereinafter set forth, the Parties to this Amendment No. 1 mutually agree as follows:
1. Incorporation of Recitals. The recitals listed above are true and correct and are hereby incorporated herein by this reference.
2. Term Extension. The Parties hereby agree to an extension of the Agreement from July 1, 2026, through June 30, 2027 ("Extension Period").
3. Consumer Price Index. The Parties agree that for the Extension Period, Contractor's compensation rates under the Agreement shall be increased by three percent (3%), effective July 1, 2026.
4. Cost. Exhibit C of the Agreement, entitled "FEE SCHEDULE," is hereby deleted in its entirety and replaced with a new Exhibit "C", attached hereto and incorporated herein, which reflects the approved three percent (3%) compensation increase to the pricing schedule effective July 1, 2026.
5. Contract Amount: The total not-to-exceed compensation under the Agreement is hereby increased for the Extension Period in an amount as budgeted and approved by the City Council.
6. Full Force. Except as amended by this Amendment No. 1, all provisions of the Agreement, including without limitation the indemnity and insurance provisions, shall remain in full force and effect and shall govern the actions of the Parties under this Amendment No. 1.
7. Electronic Transmission. A manually signed copy of this Amendment No. 1 which is transmitted by facsimile, email or other means of electronic transmission shall be deemed to have the same legal effect as delivery of an original executed copy of this Amendment No. 1 for all purposes. This Amendment No. 1 may be signed using an electronic signature.
8. Counterparts. This Amendment No. 1 may be signed in counterparts, each of which shall constitute an original.
IN WITNESS WHEREOF, the Parties hereto have executed this Amendment No. 1 on the Effective Date first herein above written.
[SIGNATURES ON FOLLOWING PAGE]
SIGNATURE PAGE FOR
AMENDMENT NO. 1 TO MAINTENANCE SERVICES AGREEMENT
FOR ASPHALT SERVICES WITH HARDY & HARPER, INC.
CITY OF UPLAND HARDY & HARPER, INC.
APPROVED BY:
By:
Michael Blay, City Manager
Name: Michael Murray
ATTESTED BY:
Title: Vice President
Keri Johnson, City Clerk
By:
APPROVED AS TO FORM:
Name: Kristen Paulino
Best Best & Krieger, LLP Title: Corporate Secretary City Attorney
EXHIBIT C
HARDY & HARPER
FEE SCHEDULE
On-Call Asphalt Repair—Standard Pricing —July 1, 2026 Through June 30, 2027 Equipment Breakdown (w/o Labor) Daily Rate
Flat Bed Truck w/Compressor Mount $339.90
Bob-Tail Truck 9-11 Yards $329.60
Concrete Flat Bed Truck $309
Dump Truck 9-11 Yards $360.50
Air Compressor $164.80
Water Truck $329.60
Skip Loader(incl trailer) $360.50
Flat Bed Truck w/ 3-5 Ton roller combo $690.10 Dump Truck w/Skip Loader&Trailer combo $721
10-12 Ton Roller(incl trailer) $638.60
3-5 Ton Roller(incl trailer) $381.10
Berm Machine (min. charge) $1,545
Bobcat w/ bucket $257.50
Bobcat w/grinder $319.30
Materials Unit Cost
Asphalt(D2-PG 64-10 Mix) in accordance with SSPWC TON $97.85 Subsections 203-6 "AC" and 302-5 "AC"
Asphalt(C2-PG 64-10 Mix) in accordance with SSPWC TON $94.76 Subsections 203-6 "Asphalt Concrete" and 302-5 "AC"
Asphalt Plant Opening on Saturday EACH $1,030
Crushed Aggregate Base (CAB) per SSPWC Section CUBIC YARD $25.75 200-2.2
Crushed Misc. Base (CMB) per SSPWC Section 200-2.4. CUBIC YARD $15.45 Note: Processed Miscellaneous Base will NOT be
allowed.
Tack Coat Grade SS-1 h per SSPWC Subsection 302-5.4 SQ. FT. $1.03 Concrete (3 - 10 C.Y.) CUBIC YARD $200.85 Short Load Charge (less than 3 C.Y.) EACH $721
Asphalt 4" thick - Remove and Replace Unit Unit
(Includes sawcut/grind, tack coat, Price
95%Comp)
1 0 — 500 SQ. FT. $13.91
2 501 — 2,000 SQ. FT. $10.30
3 2,001 — 5,000 SQ. FT. $7.21
4 5,001 — 15,000 SQ. FT. $4.64
5 15,001 — 30,000 SQ. FT. $3.61
Asphalt 6" thick - Remove and Replace ni Unit
in 2 Lifts (Saw-cut/grind, tack coat, 95% Price
Comp.)
1 0 — 500 SQ. FT. $17.51
2 501 — 2,000 SQ. FT. $12.10
3 2,001 — 5,000 SQ. FT. $9.53
4 5,001 — 15,000 SQ. FT. $5.92
5 15,001 — 30,000 SQ. FT. $4.89
6" Asphalt Berm - Machine Unit Unit
Price
1 0 — 500 LINEAR FT. $12.36
2 501 — 1,000 LINEAR FT. $11.33
8" Asphalt Berm - Machine Unit Unit
Price
1 0 — 500 LINEAR FT. $13.39
2 501 — 1,000 LINEAR FT. $12.36
"T-Cut" Asphalt Grinding—0.12' Depth Unit Unit
w/ 0.12' AC Overlay Price
1 0 — 500 SQ. FT. $9.79
2 501 — 2,500 SQ. FT. $4.64
3 2,501 — 5,000 SQ. FT. $3.35
Striping (Two Coats Paint) Unit Unit
Price
1 4-inch White Stripe LINEAR FT. $1.18
2 6-inch White Stripe LINEAR FT. $1.49
3 8-inch White Stripe LINEAR FT. $1.80
4 4-inch Yellow Stripe LINEAR FT. $1.18
5 4-inch Double Yellow Stripe LINEAR FT. $2.37
Striping (Thermoplastic) per Caltrans Unit Unit
Std. Price 456 of 673
1 12-inch White Crosswalk SQ. FT. $5.15 2 12-inch White "Ladder Style" Crosswalk SQ. FT. $5.15 3 12-inch Yellow Crosswalk SQ. FT. $5.15 4 12-inch Yellow "Ladder Style" Crosswalk SQ. FT. $5.15 5 12-inch White Stop Bar SQ. FT. $5.15
6 Pavement Legend (Arrows, Speed Limit) EACH $206
7 Pavement Legend ("STOP") EACH $309
8 Pavement Legend ("STOP AHEAD") EACH $309
9 Pavement Legend ("KEEP CLEAR") EACH $309
10 Pavement Legend ("SIGNAL AHEAD") EACH $360.50 11 Pavement Legend ("SLOW SCHOOL EACH $412
XING")
12 Pavement Legend (Railroad Crossing EACH $206 Symbol)
13 Pavement Legend (Bike Lane Symbol) EACH $206 A.C. Cap Over Existing (Skin Patch) Unit Unit
(1"- 1.25" Nominal Thickness) Price
1 0 — 1,000 SQ. FT. $11.85
2 1,001 — 5,000 SQ. FT. $9.79
3 5,001 — 10,000 SQ. FT. $7.73
4 10,001 + S.F. SQ. FT. $5.67
Slurry Seal —Type 1 Unit Unit
Price
1 0 — 1,000 SQ. FT. $5.30
2 1,001 — 5,000 SQ. FT. $2.94
3 5,001 — 10,000 SQ. FT. $1.49
4 10,001 + S.F. SQ. FT. $0.67
Slurry Seal —Type 2 Unit Unit
Price
1 0 — 1,000 SQ. FT. $5.30
2 1,001 — 5,000 SQ. FT. $2.99
3 5,001 — 10,000 SQ. FT. $1.55
4 10,001 + S.F. SQ. FT. $0.77
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CITY OF UPLAND
MAINTENANCE SERVICES AGREEMENT
2023 ON-CALL ASPHALT PAVEMENT REPAIR SERVICES
CONTRACT NUMBER: 23PW0801
1. PARTIES AND DATE.
This Agreement is made and entered into this 14 day of August, 2023 by and between the City of Upland, a general law city and municipal corporation organized under the laws of the State of California with its principal place of business at 460 N.Euclid Avenue, Upland,CA 91786("City")and Hardy&Harper, Inc. ("Contractor"). City and Contractor are sometimes individually referred to as"Party" and collectively as "Parties" in this Agreement.
2. RECITALS.
2.1 Contractor.
Contractor desires to perform and assume responsibility for the provision of certain maintenance services required by the City on the terms and conditions set forth in this Agreement. Contractor represents that it is experienced in providing On-Call Asphalt Pavement Repair services to public clients, that it and its employees or subcontractors have all necessary licenses and permits to perform the Services in the State of California, and that is familiar with the plans of City. Contractor shall not subcontract any portion of the work required by this Agreement, except as expressly stated herein,without prior written approval of City. Subcontracts, if any, shall contain a provision making them subject to all provisions stipulated in this Agreement.
2.2 Project.
City desires to engage Contractor to render such services for the 2023 On-Call Asphalt Pavement Repair Services project("Project") as set forth in this Agreement.
3. TERMS.
3.1 Scope of Services and Term.
3.1.1 General Scope of Services. Contractor promises and agrees to furnish to the City all labor, materials, tools, equipment, services, and incidental and customary work necessary to fully and adequately supply the professional On-Call Asphalt Pavement Repair maintenance services necessary for the Project("Services"). The Services are more particularly described in Exhibit "A" attached hereto and incorporated herein by reference. All Services shall be subject to, and performed in accordance with,this Agreement, the exhibits attached hereto and incorporated herein by reference, and all applicable local, state and federal laws, rules and regulations.
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3.1.2 Term. The term of this Agreement shall be from August 14,2023 to Jun 30,2026,unless earlier terminated as provided herein. The City may, upon mutual agreement, extend the contract for three (3) additional 1 (one)year terms. If contract is extended beyond the original term, contract price may be adjusted at the beginning of each calendar year in accordance with the changes in the Consumer Price Index for all Urban Consumers in the Riverside-San Bernardino-Ontario Area published monthly by the United States Bureau of Labor Statistics (CPI).
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3.2 Responsibilities of Contractor.
3.2.1 Control and Payment of Subordinates; Independent Contractor. The Services shall be performed by Contractor or under its supervision. Contractor will determine the means, methods, and details of performing the Services subject to the requirements of this Agreement. City retains Contractor on an independent contractor basis and not as an employee. Contractor retains the right to perform similar or different services for others during the term of this Agreement. Any additional personnel performing the Services under this Agreement on behalf of Contractor shall also not be employees of City and shall at all times be under Contractor's exclusive direction and control. Contractor shall pay all wages, salaries, and other amounts due such personnel in connection with their performance of Services under this Agreement and as required by law. Contractor shall be responsible for all reports and obligations j respecting such additional personnel, including, but not limited to: social security taxes, income tax withholding, unemployment insurance,disability insurance, and workers' compensation insurance.
3.2.1.1 PERS Eligibility Indemnification. In the event that Contractor or any employee, agent, or subcontractor of Contractor providing services under this Agreement claims or is determined by a court of competent jurisdiction or the California Public Employees Retirement System ("PERS") to be eligible for enrollment in PERS as an employee of the City, Contractor shall indemnify, defend,and hold harmless City for the payment of any employee and/or employer contributions for PERS benefits on behalf of Contractor or its employees, agents, or subcontractors, as well as for the payment of any penalties and interest on such contributions,which would otherwise be the responsibility of City.
Notwithstanding any other agency, state or federal policy, rule, regulation, law or ordinance to the contrary, Contractor and any of its employees, agents, and subcontractors providing service under this Agreement shall not qualify for or become entitled to, and hereby agree to waive any claims to, any compensation, benefit,or any incident of employment by City, including but not limited to eligibility to enroll in PERS as an employee of City and entitlement to any contribution to be paid by City for employer contribution and/or employee contributions for PERS benefits.
3.2.2 Schedule of Services. Contractor shall perform the Services expeditiously, within the term of this Agreement. Contractor represents that it has the professional and technical personnel required to perform the Services in conformance with such conditions. In order to facilitate Contractor's conformance with the Schedule, City shall respond to Contractor's submittals in a timely manner. Upon request of City, Contractor shall provide a more detailed schedule of anticipated performance to meet the Schedule of Services.
3.2.3 Conformance to Applicable Requirements. All work prepared by Contractor shall be subject to the approval of City.
3.2.4 City's Representative. The City hereby designates Public Works Director, or his or her designee, to act as its representative for the performance of this Agreement ("City's Representative").
City's Representative shall have the power to act on behalf of the City for all purposes under this Agreement. Contractor shall not accept direction or orders from any person other than the City's Representative or his or her designee.
3.2.5 Contractor's Representative. Contractor hereby designates the Project Manager,or his or her designee, to act as its representative for the performance of this Agreement ("Contractor's Representative"). Contractor's Representative shall have full authority to represent and act on behalf of the Contractor for all purposes under this Agreement. The Contractor's Representative shall supervise and direct the Services, using his or her best skill and attention, and shall be responsible for all means, -2 -
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methods,techniques, sequences, and procedures and for the satisfactory coordination of all portions of the Services under this Agreement.
3.2.6 Coordination of Services. Contractor agrees to work closely with City staff in the performance of Services and shall be available to City's staff,consultants,and other staff at all reasonable times.
3.2.7 Standard of Care; Performance of Employees. Contractor shall perform all Services under this Agreement in a skillful and competent manner, consistent with the standards generally recognized as being employed by professionals in the same discipline in the State of California. Contractor represents and maintains that it is skilled in the professional calling necessary to perform the Services.
Contractor warrants that all employees and subcontractors shall have sufficient skill and experience to perform the Services assigned to them. Finally, Contractor represents that it, its employees and subcontractors have all licenses, permits, qualifications and approvals of whatever nature that are legally required to perform the Services, including a City Business License, and that such licenses and approvals _. shall be maintained throughout the term of this Agreement. As provided for in the indemnification provisions of this Agreement, Contractor shall perform, at its own cost and expense and without reimbursement from the City, any services necessary to correct errors or omissions which are caused by the Contractor's failure to comply with the standard of care provided for herein. Any employee of the Contractor or its sub-contractors who is determined by the City to be uncooperative, incompetent, a threat to the adequate or timely completion of the Project, a threat to the safety of persons or property, or any employee who fails or refuses to perform the Services in a manner acceptable to the City,shall be promptly removed from the Project by the Contractor and shall not be re-employed to perform any of the Services or to work on the Project.
3.2.8 Period of Performance. Contractor shall perform and complete all Services under this Agreement within the term set forth in Section 3.1.2 above ("Performance Time").
3.2.9 Disputes. Should any dispute arise respecting the true value of any work done, of any work omitted, or of any extra work which Contractor may be required to do or respecting the size of any payment to Contractor during the performance of this Contract,Contractor shall continue to perform the Work while said dispute is decided by the City. If Contractor disputes the City's decision,Contractor shall have such remedies as may be provided by law.
3.2.10 Laws and Regulations; Employee/Labor Certifications. Contractor shall keep itself fully informed of and in compliance with all local, state, and federal laws, rules and regulations in any manner affecting the performance of the Project or the Services, including all Cal/OSHA requirements, and shall give all notices required by law. Contractor shall be liable for all violations of such laws and regulations in connection with Services. If the Contractor performs any work knowing it to be contrary to such laws, rules, and regulations and without giving written notice to the City, Contractor shall be solely responsible for all costs arising therefrom. City is a public entity of the State of California subject to certain provisions of the Health &Safety Code, Government Code, Public Contract Code, and Labor Code of the State. It is stipulated and agreed that all provisions of the law applicable to the public contracts of a municipality are a part of this Agreement to the same extent as though set forth herein and will be complied with. These include but are not limited to the payment of prevailing wages,the stipulation that eight (8) hours' labor shall constitute a legal day's work and that no worker shall be permitted to work in excess of eight (8) hours during any one calendar day except as permitted by law. Contractor shall defend, indemnify, and hold City, its officials, directors, officers, employees and agents free and harmless, pursuant to the -3-
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